The number of deportation proceedings initiated during October to December 2011 by Immigration and Customs Enforcement (ICE) in the nation's 50-plus Immigration Courts fell sharply to only 39,331 — down 33 percent from 58,639 filings recorded the previous quarter. Filings are typically lower at this time of year, but even adjusting for this seasonal drop-off and for late reporting, there appear to have been over 10,000 fewer deportation filings than would have been expected last quarter.

This substantial drop may have been caused by the steps needed to implement the June 17, 2011 agency directive on prosecutorial discretion or as the indirect effect of the review announced August 18, 2011 by the Administration of all pending Immigration Court cases. The objective of these twin initiatives was to better target enforcement resources on high priority cases.

However, even with fewer filings there was little evidence that these cases are so far being better targeted toward serious criminals — ICE's announced top enforcement priority. See Figure 1 and Table 1. A total of 24,073 individuals were sought to be deported because they were alleged to have entered illegally, while 8,884 were charged with other immigration violations. In contrast, only 1,300 — just 3.3 percent — were sought to be deported as alleged "aggravated felons". Even this small share was down from previous quarters. During July through September of 2011, 3.8 percent were charged as alleged "aggravated felons," while six months ago the share was 4.0 percent.

Figure 1. Deportation Charges in Immigration Court, FY 2012 (1st Quarter)

Table 1. Deportation Proceedings Initiated in Immigration Courts by ICE, October - December 2011 Most Serious Charge by Category by Type Total Individuals Charged 39,331   National Security / Terrorism 4   Terrorism   0 National Security   4 Criminal 5,493   Aggravated Felons   1,300 Other Criminal   4,193 Immigration 32,957   Entry Without Inspection   24,073 Other Immigration   8,884 * FY 2012 counts based on EOIR records as of 12/31/2011 can be expected to rise slightly once late reporting is incorporated. Total includes miscellaneous or incomplete charge information.

An additional 4,193 were charged by ICE for other alleged criminal activity last quarter. When considered together with alleged "aggravated felons," the proportion of filings in the last quarter seeking deportation on grounds of any alleged criminal activity was still less than one out of seven (14%). And even this small slice is continuing to decline. Two years ago, slightly more than one of six (17.3 percent) were alleged to have engaged in criminal activity as the grounds ICE cited for seeking removal. See Table 2.

These results are based upon analyses of case-by-case records covering all proceedings filed in the Immigration Courts and were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA) by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. EOIR, a part of the Department of Justice, administers the nation's special administrative court system charged with deciding whether noncitizens should be deported or are legally entitled to remain in the country^[1].

See also TRAC's previous report tracking the basis for deportation proceedings for the decade before 9/11 with the decade after 9/11, and contrasting Bush and Obama administration records.

Latest Court Filings and Charges: By Nationality, State and Hearing Location

TRAC's app lets you track — on a charge-by-charge basis — how well or poorly the deportation proceedings initiated by ICE actually match its announced priorities and policies. With the prosecutorial discretion ICE is asking its attorneys and enforcement personnel to exercise, are the agency's limited resources being focused on high priority targets for deportation in your locale? Those charged simply with entry without inspection are separately enumerated among these charge classes. Also included is information on whether the individual charged was a so-called "aggravated felon", or charged with some other criminal violation.

Defining "Criminal" Activity: What ICE Counts

A chief reason why ICE fails to cite criminal activity more often as the basis for seeking deportation orders in Immigration Court is that many of the criminal convictions the agency labels as "criminal" in its own public pronouncements are not — under the nation's immigration laws — defined as serious enough to be considered a deportable offense.

Immigration statutes define deportable offenses, including what criminal activities are considered deportable offenses^[2]. While ICE states it is targeting serious criminals who pose a threat to public safety and security, what it actually counts in its statistics of deported convicted criminals is quite different.

Very minor violations counted. According to ICE, its public pronouncements on the number of convicted criminals detained or deported include every type of criminal violation no matter how minor. Many Americans may not realize that very minor violations — violations that at most might subject one to a small fine, require no court appearance, and for which the only notice received is a ticket — are classified as "crimes" in some jurisdictions including the federal government.

"A boater in Florida speeds in a manatee zone. A couple takes an afternoon walk with their dog off its leash. A man drives without his seatbelt secured. All were on federal land. A federal law enforcement officer approached each. Each one received a ticket and the option to pay a fine. Each sent in a check. And by doing so, all pled guilty to a federal crime."^[3]

Thus, by ICE's definition, the vast majority of U.S citizens have undoubtedly engaged in activities which would be considered criminal in some jurisdictions in the United States, including in all likelihood the very officials at ICE who are in charge of enforcing deportation laws^[4].

Clearly, including activities that most citizens engage in as "criminal" greatly diminishes the meaningfulness of administration figures concerning the percentage of those detained or deported who were "convicted criminals."

ICE's definition of serious ("Level 1") offenses surprisingly broad. ICE also divides convicted criminals by whether the ICE "threat level" was classified as Level 1 (highest) to Level 3 (lowest). Recently released data for FY 2012 covering all individuals ICE was detaining on October 3, 2011^[5] lists both the threat level along with the individual's "most serious" criminal conviction. The most serious Level 1 offense encompasses a surprisingly broad swath of violation types. Included in the data TRAC found cases, for example, with the following "most serious" Level 1 offenses:

• Traffic offense
• Driving under influence of liquor
• Public order crimes
• Disorderly conduct
• Obstructing police
• Obstructing justice
• Possession of obscene material
• Frequenting house of ill fame
• Neglect of family
• Possession of marijuana
• Possession of liquor
• Illegal entry
• Illegal re-entry

Table 3. ICE Classification of Detained Individuals

Marijuana possession was the third most frequently cited Level 1 charge, while driving under the influence of liquor was the eighth most frequently cited Level 1 charge. Simple traffic violations were the 13th most frequently cited Level 1 charge. See Table 3.

ICE is resisting releasing more detailed records sought by TRAC that might help the public understand what about these offenses justified the classification of the noncitizen as a Level 1 convicted criminal. But based upon available information, it would appear that even what ICE labels Level 1 offenders may not always have committed crimes serious enough to be considered deportable criminal offenses, as defined by the nation's immigration laws.

Table 4. Most Serious Charge Recorded for ICE Detainees

It is also noteworthy that when all three threat levels are analyzed, just three offenses — driving under the influence of liquor, traffic offenses, and marijuana possession — accounted for more than one out of every four of the "most serious" convictions for those individuals ICE had detained. Illegal entry also made the "top ten." See Table 4.