Sharp Decline in ICE Deportation Filings

Targeting of Serious Criminals Fails to Improve

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.

Table 2. Trends in Charges Brought by ICE in Immigration Courts
Most Serious Charge Percent of Total (First Quarter)
FY 2010 Q1 FY 2011 Q1 FY 2012 Q1
Total Individuals Charged* 100% 100% 100%
National Security / Terrorism 0.03% 0.02% 0.01%
Criminal 17.3% 15.9% 14.0%
Immigration Only 81.2% 82.2% 83.8%

* All counts based on EOIR records as of 12/31/2011. FY 2012 counts can be expected to rise slightly once late reporting is incorporated so percentages are preliminary. Total includes those with miscellaneous or incomplete charge information.

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

On the basis of the extremely detailed and timely records that TRAC has obtained, enforcement patterns can be determined for each state, Immigration Court and hearing location. What were the charges brought against each of the individuals in these various locations? What was their nationality? You can access these detailed and highly localized portraits on TRAC's public website by accessing our deportation proceedings interactive tool, now updated with data through the end of December 2011. Comprehensive data covering FY 1992 through the first quarter of FY 2012 are included.

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.

[1] We used the term "deportation" in a generic sense — whether legally labeled as removal, deportation, or expulsion based upon inadmissibility grounds.

[2] For a listing of deportable criminal offenses and how frequently each has been used as a basis for seeking a deportation order with citations to the specific sections of the immigration laws, see this table in TRAC's September 2011 report. To see the text of the laws referred to, see 8 USC 1182 and 8 USC 1227.

[3] Warner, Mary C. "The trials and tribulations of petty offenses in federal courts," New York University Law Review, December 2004, Vol 79, p 2417.

[4] TRAC has been unable to find any study that attempts to measure the proportion of the population who are "convicted criminals" as that term is used by ICE. Measures of the extent to which citizens have been arrested or convicted for criminal activity invariably exclude petty offenses such as traffic violations and other types of violations enforced through issuance of tickets. Even after excluding such petty offenses, studies show that criminal activity is quite high among citizens. A recent study, for example, found that by age 23 almost a third of all Americans had been arrested for a crime. A classic study, headed by Professor Marvin E. Wolfgang, of all males born in the year 1945 in Philadelphia, Pennsylvania found that nearly half (47 percent) had an arrest record by age 30 based upon FBI records.

[5] This spreadsheet was released to TRAC by ICE in response to our FOIA request. This extract of 32,298 cases represents all detained individuals as of 10/3/2011. Of these, ICE classified 19,113 as convicted criminals. TRAC has a long pending 2010 FOIA request for case-by-case anonymous data for all recorded convictions for an individual and seriousness level assigned but ICE refuses to release this information. A copy of the same spreadsheet was earlier shared with TRAC by Elise Foley of the Huffington Post. Her article using the data appeared on January 27, 2012. ICE originally prepared the spreadsheet in response to an October 3, 2011 FOIA request by Jason Cherkis of the Huffington Post requesting "the number of people currently being detained by ICE as well as the crime committed and what level ICE has assigned to the crime."