What happened to the roughly 1,500 individuals taken into custody by Immigration and Customs Enforcement (ICE) in a typical work day? According to the latest ICE data, two out of three — around 1,000 — were "removed", meaning they were deported and barred from returning to the U.S. for years. Other individuals were released after posting bond, or on their own personal recognizance or for other reasons. This happened to approximately one in four detainees — roughly 360. Only about 20 of those released were placed under ICE's electronic monitoring or enhanced supervision in lieu of detention (ATD).

Many of these decisions on detainees were made by ICE officials. A smaller number were made by a judge after a court proceeding. Whatever the source, the ultimate outcome — removal or release — varied in surprising ways from one state to the next.

For example, of those ICE picked up initially in Arizona, 84 percent were removed. For persons picked up in neighboring California, the removal rate was just 50 percent. In fact, California's rate more closely resembled the experience of individuals detained in New York (59%) or Florida (45%) or Illinois (43%) than those in Arizona. In Texas the removal rate was 70 percent, which more nearly matched what happened to those detained in Massachusetts (69%) than in the adjoining state of New Mexico (88%)[1].

This report examines the set of detainees who left ICE custody in November and December of 2012 and the "book-out" reason recorded in the case-by-case ICE records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act[2]. For each case, the state reported is the state where the individual was first taken into custody by ICE, even if a detainee was later transferred to an ICE detention facility in another state.

Initial Decisions on ICE Detainees

Nearly four out of ten individuals (39%) left ICE custody from the same facility where they were first detained. Table 1 presents the reason ICE recorded for their departure. Slightly more than one out of four (26%) were deported. Of these, a total of 22 percent were legally removed and barred from reentry to the U.S., while an additional 4 percent were given a "voluntary return" or a "voluntary departure" — that is, they were deported but not barred from reentry. See sidebar for explanation of ICE's various book-out reasons.

One out of nine detainees were released, at least temporarily. The most common reason was that they were released on their personal recognizance or bonded out while their case was waiting decision before a judge. A variety of other reasons also led to their release: for example, prosecutorial discretion was exercised for a very small number (0.2%). ICE also terminated several hundred cases (0.3%) because the individual was entitled to be in the country.

While ICE has promised to ramp up its alternatives to detention (ATD) program that uses electronic monitoring and other forms of supervision, only one in a hundred individuals were placed under this program. In addition, one individual died and four escaped.

Sometimes ICE turned detainees over to another federal agency. The U.S. Marshals Service assumed custody of slightly more than one out of a hundred (1.4%). This typically occurred because there was an outstanding criminal case against the individual or the individual was needed as a material witness in a criminal case. Also, the Office of Refugee Resettlement (ORR) assumed custody of a small number of unaccompanied minors. ORR rather than ICE has been assigned the responsibility for supervising these detainees.

Tracing Outcomes When Detainees Are Transferred

The majority (61%) of all detainees were neither released nor deported from their initial ICE facility; instead, they were transferred elsewhere. As we reported in our first report in this series, many individuals were first placed in temporary ICE holding facilities and then transferred to another ICE detention location. Indeed, many individuals were transferred several times while they remained in ICE custody.

For those transferred, TRAC traced their transit from detention facility to detention facility so that we could identify the final "book-out" reason ICE recorded for each detainee. This allowed a more complete picture to emerge. Table 2 shows the reason ICE recorded for each individual finally "booked out" from ICE custody during November and December 2012. The table includes individuals who were never transferred as well as those that were.

Just under two-thirds (66%) were recorded as removed while still in ICE custody, and legally barred from reentry into the U.S. An additional 7 percent were deported without a legal bar to reentry using a so-called voluntary return or a voluntary departure. (See sidebar for explanation of these terms.)

Nearly one out of four (24%) were released and allow to remain in the U.S. at least temporarily. The largest number (17%) of these were released on bond or on their personal recognizance. Still only a relatively small number (1%) were released under ICE's ATD program.

For those detained until their final court outcome, the data do show that some 865 individuals — an average of 19 each work day, or about 5,000 per year — do win their cases and establish that they have a right to remain in this country. But such individuals often spent months or even years in ICE detention facilities before their status was resolved. Of those released before a court decision was reached, ICE did not report on how many ultimately won their cases. But court data suggest their numbers are substantial.

State-by-State Details

As noted earlier, the most surprising finding was how markedly what occurred depended upon the state in which an individual was originally taken into ICE custody. The rest of this report presents these state-by-state comparisons. Similar to our first report in this series, these findings are based on the state where ICE initially took these individuals into custody. Presumably in most situations the initial pick-up location would be close to where the individual was apprehended.

Table 3 provides a state-by-state ranking by the percentage of individuals removed out of all those who left ICE custody during November and December of 2012. Because some natural variability would be expected for states that had few detainees, these rankings are limited to states that had at least 250 individuals who left ICE custody during this period.

New Mexico was the state with the highest removal rate — 88 percent. Arizona was second with 84 percent, followed by North Carolina with 83 percent. Texas, Massachusetts, Utah, Georgia and Missouri all had removal rates that were within five percentage points (plus or minus) of the national average of 66 percent.

The state with the lowest removal rate was Virginia, with 37 percent of those ICE took into custody being removed. The next lowest removal rates were in Illinois (43%) and Florida (45%).

Table 4 presents a similar state ranking based on the percentage of individuals released from custody. The most common reasons were release on bond, followed by orders of recognizance and orders of supervision[3].

Virginia tops this list; the majority (56%) of those picked up within its borders by ICE were released. Minnesota was second with 47 percent of those detained by ICE being released. Indiana was third with 45 percent. At the other end of the scale were the same three states that had the highest removal rates: New Mexico with only 8 percent released, Arizona with 11 percent and North Carolina with 12 percent.

Of special interest were variations among the states in the degree to which ICE's electronic monitoring or enhanced supervision (ATD) program was listed as the reason for release from detention. While on a national level relatively few detainees (1%) were released under ATD, fully 20 percent of all ICE detainees in Virginia were released under this program. The other state with significant ATD numbers was California. Together Virginia and California accounted for three out of every four individuals who were released from detention under this program. However, with California's much larger volume of detainees, only 4 percent involved ATD. Maryland and Pennsylvania also had rates of ATD use comparable to California although relatively few in actual number. Twenty-seven states recorded no release under the ATD program during this period.

Note that these two listings are not necessarily complementary to each other, since there were other reasons recorded by ICE beyond removal and release. For example, California led the country in the proportion (18%) of detainees who were deported through a voluntary return or a voluntary departure, neither of which legally bars individuals from reentry. One out of ten ICE detainees picked up in either Florida or Michigan also were given voluntary returns or voluntary departures. Another anomaly was Illinois. There a very significant proportion of individuals who entered ICE custody appear to have been unaccompanied minors. They were turned over to ORR to handle. For further details on all states, see Table 5.

Conclusion

TRAC has sought a great deal more data from ICE which, had it been received, might have helped illuminate why these differences occurred. Thus, at present, this research raises more questions than it is able to answer. Among important unanswered questions are:

• How much of these state-to-state differences can be explained by the varying characteristics of the individuals ICE currently takes into custody?
• When there are differences among the states, are they due to some form of targeting or simply the results of the differing characteristics of noncitizens residing in that state?
• Does the varying availability of legal assistance help explain these patterns?
• To what extent do the administrators and attorneys in different ICE offices or personnel in these facilities employ different standards or exercise their authority differently?
• Do court precedents or the ruling patterns of judges from different parts of the country differentially affect these custody decisions?

It is important to answer these questions, given our country's commitment to equal justice under the law. Also, decisions of detention versus release affect the costs to taxpayers of supporting ICE's detention system. Finally, on a human level, how these decisions are made has an impact every day on the lives of countless detainees and their families.