Secure Communities and ICE Deportation:
Figure 1. ICE Deportations in FY 2013
But in stark contrast to these policies, the most serious charge for fully half of the total was an immigration or traffic violation.
More particularly, for almost one quarter (22.7 percent) of those with any conviction at all in FY 2013, the most serious offense was illegal entry (8 USC 1325). This is classified as a petty misdemeanor under the federal criminal code.
The report that follows is based on an analysis of ICE records of 2.3 million deportations from FY 2008 through FY 2013. These records were obtained by TRAC at Syracuse University through dozens of Freedom of Information Act requests.
In the report we examine ICE's contention that the administration has, within its resource constraints, met with a high degree of success in achieving its objective of deporting "convicted criminals." Presented here for the first time is a very detailed examination of the composition of the group that ICE has labeled as "criminals." A shorter companion report provides a profile of recent ICE deportees by their age, gender, and country of citizenship.
Terminology in this area can be confusing. So at the offset it is important to clarify exactly which "deportations" are covered in this report and which are not.
First, because we are using ICE records, we of necessity follow that agency's definition, which counts all formal "removals" as well as the more nebulous concept of any "returns." With a removal there is a formal order — either issued by a judge or administratively by an ICE agent — that not only requires that the individual leave the country but bars the individual from returning to the U.S. for a period of years (sometimes for life). With returns, an individual leaves the country but is not legally barred from reentry. Indeed, for some returns, the individual may have simply decided to leave the country for personal reasons. ICE then reviews passenger manifests (from commercial flights for example) and includes in its deportation counts individuals it flags from these lists.
Second, because we are using ICE data, only some of the Border Patrol apprehensions resulting in deportations are covered. While ICE has been assigned the responsibility of maintaining the integrated database system used by both the Border Patrol agents of Customs and Border Protection (CBP) as well as by ICE personnel to track their own enforcement activities, ICE thus far has refused to cooperate with Customs and Border Protection to make a joint release from this enforcement integrated database (EID) system so that overall ICE/Border Patrol counts could be examined. Thus, the focus of this report is on ICE deportations alone — that is, deportations in which ICE played some role.
FY 2008 - FY 2013: Obama versus Bush
ICE currently uses an exceedingly broad definition of criminal behavior: even very minor infractions are included. For example, anyone with a traffic ticket for exceeding the speed limit on the Baltimore-Washington Parkway who sends in their check to pay their fine has just entered ICE's "convicted criminal" category. If the same definitions were applied to every citizen — rather than just to noncitizens — available evidence (see TRAC's February 2012 report) suggests that the majority of U.S. citizens would be considered convicted criminals. (Obviously, many individuals who engage in such illegal behaviors are never ticketed or charged.) Indeed, if truth be known it is likely that almost everyone — members of the public and government officials alike — would have to admit that they have engaged in "criminal" behavior as ICE uses that term.
This report probes beneath the label to examine what offenses these so-called "convicted criminal" deportees have committed. ICE records the nature of criminal charges in its deportation records at two levels of detail. In the first level, which we examine in this section, offenses are grouped under general headings such as homicide, burglary, assault, drugs, traffic and so forth. The agency then classifies deportees into these charge classes based upon their criminal conviction. If individuals have more than one conviction, the category used corresponds with their most serious conviction.
TRAC examined how the number of ICE deportees in each of these offense classes had changed over time. Data were compiled by TRAC for the last six years — fiscal years 2008 through 2013. This spans the last full year of the Bush administration through the first five years of the Obama administration. (See earlier TRAC report for a comparison of ICE removals for FY 2005 through the first 9 months of FY 2010.)
This is also the same period that spans the period from just before the Secure Communities program was launched under President Bush in October 2008 (the beginning of FY 2009) to its extension to virtually all jurisdictions across the nation — some 3,181 — by the end of fiscal year 2013. According to the agency, Secure Communities was primarily launched to increase ICE's ability to find and deport noncitizens who had committed serious crimes.
The data show that ICE deportations were about the same last year as they were just before the Secure Communities program was launched. (There had been a steady rise up until FY 2012, but last year deportations declined back to their 2008 level.) What has increased fairly dramatically are the numbers for those that ICE has classified "convicted criminals." See Figure 2 and Table 2. Between FY 2008 and FY 2013, their numbers rose by 87 percent. During FY 2008, ICE reported deporting 115,727 individuals with some type of conviction, while starting in FY 2011 the agency has been reporting deporting over two hundred thousand annually.
However, not all offense categories experienced this same degree of growth. The number of deportees convicted of some offense types changed very little or actually declined.
For example, the number of deportees convicted of vehicle theft was down by 27 percent. Robbery, burglary and forgery categories saw only a small increase — up 4 to 6 percent over this six year period. Although their numbers were small, declines also occurred for individuals convicted of arson (down 1 percent), embezzlement (down 14 percent) and bribery (down 41 percent).
At the other extreme, two large categories that ICE has classified as convicted criminals shot way up: those with a traffic violation (up 191 percent) and individuals convicted of immigration offenses (up 167 percent).
These two groups already made up a large proportion of deportees in FY 2008. During that year, the last full year of the Bush administration, these two offense categories were the most serious conviction for one third (32 percent) of "criminal" deportees. Only drug offenses in 2008 surpassed the number in either of these two categories. See earlier Table 2.
By last year, the number of deportees whose most serious conviction was an immigration violation (typically the petty misdemeanor of illegal entry) had risen to 54,812; the count of those with just a traffic violation was 47,249. Together, as shown in Figure 3, these two categories comprised half of all those classified by ICE as "criminal" deportees. In addition, their growing numbers had surpassed the number of deportees convicted of drug offenses, which had fallen to third place with 41,335 deportees.
FY 2010 to FY 2013: Nationwide Expansion of Secure Communities
Few jurisdictions were covered by Secure Communities before 2010. As shown in Figure 4 and Table 3, the number of jurisdictions covered by the program rapidly expanded beginning in FY 2010. Thus, the program's real impact should be observable only during the last four years.
On June 30, 2010 and reiterated again on March 2, 2011, former ICE Director John Morton issued a directive entitled "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens." In these memoranda to all staff, Morton instructed that the agency would focus its limited resources on deporting serious criminals. The agency's highest priority, he stated, was to focus on finding and deporting noncitizens who posed a serious threat to public safety or endangered national security.
Although this new emphasis was announced with great fanfare, the data show that this policy appeared to have had very little impact on the character of actual deportations. While there was an increase in the number of deportees during FY 2011 who had been convicted of an offense, this increase was largely the result of a sharp increase in those picked up and deported for traffic violations — not serious criminals.
In fact, minor traffic violations were one category for which the announced policy called for a de-emphasis, not increase. "Some misdemeanors are relatively minor and do not warrant the same degree of focus as others. ICE agents and Officers" were instructed to "exercise particular discretion when dealing with minor traffic offenses such as driving without a license." While deportees in this category did decline after 2011, their number in FY 2013 still exceeded their level in FY 2010 when the agency's new priorities had been announced.
More striking is that there has been an absolute decline in the number of noncitizens removed who have been convicted of any crime apart from traffic and immigration. During FY 2010 these individuals numbered 116,884. By FY 2013 they had declined to only 103,676. This means that the trumpeted increase in the number of "convicted criminals" ICE has deported resulted entirely from jacking up the deportation of noncitizens whose most serious criminal conviction was a traffic or an immigration offense. See Table 4 and Figure 5.
ICE also records the nature of criminal charges in its deportation records at a finer level of detail. Under the general heading of drug offenses, for example, ICE records indicate whether this was for mere possession or for sales, and also includes the type of drug involved — cocaine, amphetamines, marijuana, etc. Under the category of assault, we can determine whether this was a simple or an aggravated assault, whether a police officer, family member or a non-family member was assaulted, and whether any weapon was used along with the weapon type.
In this section we therefore dig deeper and see what type of offense within these broad categories was recorded. For those convicted of any crime, ICE records their particular offense using these more detailed charges. If an individual has more than one conviction, the charge used corresponds with the most serious conviction.
For this analysis, data with these more detailed charge information are available only for FY 2012 and FY 2013. While TRAC requested case-by-case records providing these details on deportees covering the entire period, only data released for the last two years proved to be reliable. For earlier years, ICE claimed that it was unable to locate case-by-case records on more than 90 percent of the individuals it had deported.
Nearly four hundred separate offenses are listed as the most serious conviction in the ICE deportation records analyzed by TRAC. However, the top twenty charges accounted for three out of every four of these deportations during FY 2013 (74 percent). This "top 20" list is shown in Table 5 along with the corresponding number in FY 2012. Table 6 provides the complete list of offenses along with their occurrence in FY 2012 and FY 2013, based upon the records ICE released to TRAC.
As we see in Table 5, the top three most common charges among ICE deportees during FY 2013 were either immigration or traffic offenses. Conviction for illegal entry was first, driving while intoxicated (DWI) was second, and simple traffic violation was third.
In fourth place in FY 2013 was conviction for marijuana possession. This meant that out of all deportations where the most serious conviction involved drugs, the most common offense found was simple marijuana possession. The number of marijuana possession deportation cases had grown so that they exceeded convictions for cocaine possession, which had dropped to sixth place overall.
Two other immigration offenses — illegal re-entry and possession of fraudulent immigration documents — are included on this top 20 list. There are also other kinds of drug offenses beyond marijuana on the top-20 list. Indeed seven out of 20 on the list are drug offenses of different types. Lowest among drug charges on the list is perhaps the most serious — drug trafficking. Convictions for drug trafficking accounted for only one percent of deportees recorded as convicted of a crime, while marijuana possession was more than three times that level.
We also see public order crimes as well as disorderly conduct each make the list. Crimes against public order generally cover violations that go against publicly shared values, norms, or customs and vary from state to state. These are sometimes described as "victimless" crimes where it is thought that no one is harmed by the conduct. This catch-all category often covers disorderly conduct type violations such as public drunkenness. Filling out the top 20 list is domestic violence in 20th place.
Specific offenses from more traditional crime categories such as assault, larceny, burglary and robbery are also found within the top 20. Each of these broad categories include offenses from quite serious to very minor. However, those making the list are the miscellaneous and often less serious offenses within these broad categories, which is known since they weren't placed in one of the sub-categories with more serious elements involved in the crime.
During the past six years — from the last year of the Bush administration through the first five years of the Obama administration — government records indicate over 2.3 million noncitizens were deported by ICE. This spans the entire period from just before the Secure Communities program was launched under President Bush in October 2008 to its extension to virtually all jurisdictions across the nation — some 3,181 — by the end of fiscal year 2013.
Analysis of ICE data covering these 2.3 million deportations obtained by TRAC show that while the agency was able to increase the number of noncitizens it deported who had been convicted of a crime, this was largely a result of an increase in the deportations of individuals whose most serious conviction was an immigration or traffic violation.
In fact, after Director Morton on June 30 of 2010 directed a renewed focus on finding and deporting "convicted criminals" who posed a serious threat to public safety or endangered national security, the number of individuals deported who have been convicted of any criminal offense apart from an immigration or traffic violation has actually declined.
This decline occurred at the same time as the most rapid expansion in the number of jurisdictions covered by the Secure Communities program occurred.
 ICE's definition of what "role" it needs to play before it includes a deportation in its figures appears to be changeable. For example, in ICE records TRAC obtained just this month in response to a FOIA request, the agency stated that: "Any voluntary return on or after July 1, 2013, whose case does not have an ICE book-in will not be recorded as an ICE removal."
 This is unfortunate since there are a great many deportations that occur in which both ICE and CBP are involved. CBP apprehensions now make up a very significant component (64 percent during FY 2013) of the deportations ICE ultimately counts. This means that the numbers from year-to-year for ICE reflect not simply the level of activity, but also administrative decisions within and between the two agencies as to enforcement practices and division of responsibilities. The confusion is heightened because ICE and CBP's jurisdictions overlap for large parts of "inland" America — a large strip that includes all individuals in cities, towns, and counties within 100 miles of the country's land borders and those who travel between any locations within the U.S. whose travel route takes them within 100 miles of the border. Clearly, CBP's responsibilities are not limited to the actual border and ports of entry. Thus, equating non-CBP apprehensions — as ICE and others do — as the only "inland" apprehensions resulting in deportation is quite misleading and factually inaccurate. These agencies also have not been willing to help unscramble this confusion by releasing information to TRAC on where individuals were apprehended and why. Thus, it is unfortunately not possible to examine how many were apprehended because they had just tried to enter the country illegally versus those apprehended who have been in the U.S. for some period of time.
 ICE claimed that it was only able to locate case-by-case records for less than 10 percent of the number of its published figures on deportations up to and including FY 2011. Because these data were too unreliable to be used, TRAC is using aggregate information furnished by ICE as a follow-up to an interview TRAC conducted with ICE officials. For FY 2012 and FY 2013, case-by-case deportation data received from ICE as a result of monthly FOIA requests were used. There were, however, some months missing from the data ICE has thus far released. These months were estimated to bring the total numbers up to ICE reported fiscal year counts in these two years. For FY 2012, these estimates were based upon April, May, June, August and September records — and thus to the extent of differences between the first and second half of FY 2012, TRAC's estimates reflect patterns for the second half of that fiscal year. For FY 2013, data for eleven out of the twelve months have been received so only June data needed to be estimated. Estimates were derived under the assumption that its makeup was the same as observed during the other eleven months.
 These numbers actually appear to be underestimates of the extent to which low level violations dominated ICE deportations. ICE's published statistics claim that 59 percent of all removals had been convicted of a crime in FY 2013, whereas case-by-case ICE records released to TRAC only document convictions for 56 percent. These discrepancies only showed up for non-serious offenses. Such discrepancies might have arisen because of the late recording of minor offenses such as traffic violations.