Fewer Immigrants Face Deportation Based on Criminal-Related Charges in Immigration Court

Published Jul 28, 2022

Over the past decade, the number of criminal-related charges listed on Notices to Appear as the basis for deportation has declined dramatically. In 2010, across all Notices to Appear (NTAs) received by the immigration courts that year, ICE listed a total of 57,199 criminal-related grounds for deportation. By 2021, just over a decade later, that number dropped to 8,694, less than a sixth of its original height.

Typically, more criminal charges are listed on court documents for non-citizens who were admitted into the country lawfully compared to those who entered the country unlawfully. For instance, in FY 2021, a total of 5,895 criminal-related charges were listed on NTAs for lawfully admitted immigrants compared to 2,799 for immigrants who were not lawfully admitted. See Figure 1 (and Table 1 below).

This trend emerges at the same time that Immigration and Customs Enforcement’s (ICE) immigration enforcement activities throughout the United States have expanded dramatically through programs such as 287(g) and Secure Communities, and at the same time that questions about the relationship between immigration and crime have taken center stage in political discourse.

Criminal related grounds for deportation are not, in themselves, criminal charges, and deportation hearings are not trials to determine criminal guilt. In fact, some criminal grounds for deportation do not require an underlying criminal conviction at all. Moreover, non-citizens may have a criminal record that is not represented on an NTA. Nonetheless, due to the increasingly complex and overlapping relationship between the criminal justice system and the immigration enforcement systems—what some immigration experts have called “crimmigration”[1]—TRAC has begun tracking the volume and type of criminal-related charges listed on NTAs each year.

TRAC’s new Criminal Grounds for Deportation table makes annual charge totals available starting in fiscal year 2017 and updates each month with current data. The charges listed represent all charges on all NTAs received by the court, not the number of cases. Individual cases may involve one or multiple criminal-related grounds for deportation. The underlying data for this table comes from case-by-case Immigration Court records which were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information Act (FOIA) requests to the Executive Office for Immigration Review (EOIR).

Immigrants who are in the United States and who violate certain parts of the Immigration and Nationality Act may be deported through deportation proceedings in Immigration Court.[2] The Notice to Appear (NTA) is a charging document issued by agencies within the Department of Homeland Security to non-citizens that the agency believes should be deported. NTAs are then filed with the Immigration Courts, which marks the beginning of a deportation (or removal) proceeding. Deportation proceedings typically end with an Immigration Judge granting permission for the non-citizen to remain in the United State on a temporary or permanent basis, or issuing a deportation order.

In order to justify the assertion that an immigrant should be deported, ICE attorneys must provide one or more specific parts of US immigration law that an immigrant has violated. Based on data received from the Immigration Courts, TRAC identifies about 160 various charges. TRAC categorizes charges based on levels of seriousness, including terrorism charges, national security charges, aggravated felonies, criminal-related charges, immigration-specific charges, and those cases where only an unlawful entry is listed. Immigration-specific charges include charges of violating the terms of one’s visa, using fraudulent immigration documents, or becoming a public charge.

The aggravated felony category was introduced in 1988 not as an independent criminal charge, but as a way of classifying certain criminal charges for immigration purposes only. If the government classifies a crime as an aggravated felony, it could mean that the individual has fewer options for remaining in the United States lawfully (such as barring individuals from applying for asylum) and may not be permitted to be released from immigrant detention. [3]

Other criminal-related grounds for deportation are specifically outlined in the Immigration and Nationality Act, and include charges for controlled substances, firearms offenses, domestic violence, or the “quite complex”[4] crimes involving moral turpitude.

Immigration law makes an important distinction between criminal-related grounds of deportation for immigrants who have been lawfully admitted[5] to the country and those who have not.[6] It is beyond the scope of this report to examine all of the differences, but generally immigrants who have not been lawfully admitted face fewer procedural protections and exceptions than immigrants who have been admitted lawfully. Conversely, in filing cases against immigrants who have been lawfully admitted, ICE may be more inclined to list criminal-related grounds since the agency would not usually have recourse, by definition, to charging unlawful entry.

There are important caveats to these data. NTAs are not a record of all criminal charges and convictions in a person’s criminal history. For instance, an individual may have a charge or conviction in a local court, but those may not be included on the NTA. ICE attorneys have the discretion to choose which (if any) criminal-related grounds to include on an NTA, and a criminal charge is not a requirement for deportation. In fact, to limit the number of charges the agency needs to sustain in court, ICE may choose to only charge a non-citizen with an immigration-related charge (such as unlawful entry) in order to lessen the burden on the agency in court. Moreover, immigrants may come to ICE’s attention based on routine local policing (i.e. a traffic stop) in which no charge or conviction ever took place. And not all criminal violations, even after a conviction, are a basis under immigration statutes for removal. Finally, these data do not show the final disposition of the allegations on an NTA, and therefore do not show whether ICE’s charges were upheld, challenged, dropped, or revised by the end of the case.

With these caveats in mind, a few plausible (but not exhaustive) explanations emerge to answer the question implied by the steady decline in the use of criminal-related grounds for deportation listed on NTAs. The expansion of ICE’s immigration enforcement network over the past 15 years may mean that local law enforcement agencies are less inclined to pursue criminal charges when they know that suspects are likely to be deported, leading to fewer criminal-related grounds of deportation. Given the growing immigration court backlog, ICE could be progressively less inclined to pursue complex criminal-related grounds for deportation instead of immigration-only related grounds. It could be that ICE has already deported many immigrants with criminal histories resulting in fewer immigrants in court who have criminal records, or it could be that immigrants are simply committing fewer crimes. It is certainly not because DHS is filing fewer deportation cases in court. In FY 2013, the immigration courts received 200,000 new deportation cases. By FY 2019, that number more than doubled to about 500,000. (See TRAC’s New NTA Tool here.)

As the first of TRAC’s reports on criminal-related charges in immigration court, these new data expand transparency surrounding the role of criminal histories in deportation cases and raise important questions for further research.