ICE Bypassing Immigration Courts?
Deportations Rise as Deportation Orders Fall

Immigration and Customs Enforcement (ICE) deported a total of 39,426 individuals during May 2012[1], according to the latest available case-by-case records from ICE released to the Transactional Records Access Clearinghouse (TRAC) under the Freedom of Information Act.

Nearly one in three — or 11,735 — were removed from the country under the "expedited removal" authority granted to ICE by Congress. This administrative approach allows the agency to bypass the Immigration Courts.

(The ICE counts reported here do not include those individuals that the Border Patrol (BP) may have deported under its separate "expedited removal" powers without involving ICE. Under the current government procedures there is considerable overlap in the activities of ICE and the BP. For example, over half of ICE deportations in May were originally referred to ICE by the BP. Although case-by-case data from the BP has been requested by TRAC under the FOIA, this information has not yet been provided. As a result, we are unable to report on how many additional individuals were deported by that agency.)

However, expedited removals were only the second largest category of ICE deportations during May. As shown in Table 1, the largest number of the total — 13,697 — were removed as a result of ICE's reinstatement of an existing removal order in cases where an individual who had previously been ordered out of the United States had illegally returned.

Table 1. ICE Deportations by Type, May 2012
Deportation Type Number Percent
Reinstated order 13,697 34.7%
Expedited removal 11,735 29.8%
Voluntary return under safeguards 3,984 10.1%
Other 10,010 25.4%
Total 39,426 100.0%

In a third category, which ICE refers to as "voluntary returns (VR) under safeguards," individuals agree to leave the country without any court-issued order, and ICE monitors their departures. ICE reported that there were 3,984 of these "VR under safeguards" during May — or roughly one out of ten of the deportations ICE reported.

The remaining 25 percent of total removals — roughly 10,000 — came from all other sources. This would presumably be comprised largely of court-ordered deportations. Thus, the May data suggest that individuals recently ordered out of the country by the courts appear to make up a surprisingly small proportion of the total.

How Many ICE Deportations Bypass the Immigration Courts?

While providing details about its activities in May, ICE has refused to release complete records for previous months[2]. And even for the May data, it continues to withhold information needed to identify which removals occurred as a result of court-ordered, rather than administrative agency, procedures.

However, according to data obtained from the Immigration Courts about ICE's requests for deportation orders and the resulting orders, ICE activities in these areas have been steadily falling since 2009. See, for example, TRAC's study posted July 30. The declines reported in the data from the Immigration Courts contrast with information provided in an ICE report indicating that its deportations have been rising during this period.

These divergent trends are shown in Table 2. The practical implication is that ICE deportations increasingly appear to be bypassing the Immigration Courts. For example, during fiscal year 2010, the ratio of monthly Immigration Court deportation orders issued to monthly ICE-reported deportations was 42 percent[3]. During fiscal year 2011, this ratio fell to 40 percent, and during the first eight months of fiscal year 2012 it had declined to 33 percent. The latest figures shown in Table 1 suggest that this ratio may have fallen even further.

Table 2. Trends in Immigration Court Orders vs. Actual Deportations
Fiscal Year Monthly Average
2012 (through May) 11,339 34,321 33%
2011 13,313 33,076 40%
2010 13,764 32,739 42%

Of course, we would expect that deportations would exceed the number of deportation orders (assuming all orders result in an actual deportation), since a single court deportation order can result in repeat deportations when individuals reenter the U.S. and have to be deported again. As we saw earlier, reinstated removal orders were the single largest source for recent deportations.

However, given the trends shown in Table 2, it remains an open question as to whether we are seeing an increase in these repeat deportations rather than any net increase in individuals deported given the declining number of deportation orders. And the closely related question is: are more and more individuals now being deported without review by any court through the administrative powers Congress has granted our immigration enforcement agencies?

[1] The ICE counts include more than formal removals. Also counted are voluntary departures and voluntary returns. Only in the case of a removal is an individual legally barred from returning to the United States for a period of years.

[2] ICE also released case-by-case information on April deportations to TRAC under the Freedom of Information Act, but inexplicably most of the kinds of information shown in Table 1 above were missing from the April spreadsheet TRAC received.

[3] One would not expect the number of deportations in any month to be the same as the number of individuals ordered to be deported by an Immigration Judge that same month. Some court orders are appealed, and for others it may take some time before deportation in fact occurs. If the individual is not in custody at the time the order is entered, some individuals may not appear when ordered to depart. Nonetheless, the number of deportations ordered relative to the number of deportations that occurred provides a useful measure of the degree to which ICE deportations are (or are not) channeled through the Immigration Courts.