ICE Deporting the Wrong People

By William Fisher

While U.S. immigration authorities are “understandably eager to trumpet the overall number” of people they deport, close to one in three deportations recommended by Immigration and Customs Enforcement (ICE) is being rejected by Immigration Courts, according to an analysis of case-by-case government data.

During the last three months of FY 2010, the rejection rate of ICE requests for deportation was nearly one out of three or 31 percent. This turndown rate is up from what it was — one out of every four — 12 months earlier.

For all of FY 2010, some courts turned down ICE removal requests more than half of the time. Among them were the Immigration Courts in New York City (70% turned down), Oregon (63% turned down), Los Angeles (63% turned down), Miami (59% turned down) and Philadelphia (55% turned down). In criminal prosecutions, the typical conviction rate in recent years for immigration cases is 96 percent.

These findings are based on analysis of recent information obtained by the Transactional Clearing House at Syracuse University (TRAC) under the Freedom of Information Act.

The TRAC analysis says that the poor targeting of government removal efforts documented by the Immigration Court data shows that “scarce resources such as the investigative time of ICE agents are being wasted and that the ability of the government to deport those who should be removed from the country therefore has been reduced.”

Attorney Alison Parker, who directs the U.S. domestic civil rights program for Human Rights Watch, told IPS, “ICE is under huge pressure to show that it is deporting the undocumented. As a result it is casting its net far too wide. Secondly, the current law allows ICE to go after everyone – from turnstile-jumpers to serial killers. There are far too many turnstile-jumpers being deported. ICE should concentrate its resources on people who have committed serious crimes.”


The analysis shows that in the fiscal year 2006-2010 period, unsuccessful ICE filings affected almost a quarter of a million individuals (246,721) who were not subject to deportation because they were entitled to reside in the United States. The count is even higher (313,244), however, if all other reasons given by the judges for not granting ICE removals and deportation are counted.

Lena Graber of the National Immigration Forum agrees that the TRAC analysis shows that “ICE casts a very wide net and pursues targets indiscriminately, despite their claims about enforcement priorities.”

She told IPS, “The growth in cases dismissed for having ‘no grounds for removal’ -- from under 5% a few years ago to nearly 12% in 2010 -- demonstrates that ICE is pursuing removal against people who should not be forced to go through proceedings at all.”

She also expressed concern about the distribution of these dismissal rates. She pointed out that most of them occur in urban areas with large immigrant populations. There, she said, “the proportion of cases dismissed or granted relief is noticeably higher than average. This is likely because the vast majority of people in removal proceedings are not represented by an attorney, but those in urban areas with large immigrant populations are the most likely to have access to immigration attorneys and particularly immigrant defense organizations and pro bono networks.”

She added, “This underscores the injustice of having most of our immigration detention centers in remote rural areas in the south, far from access to legal representation.”

The documents analyzed track what happens to ICE cases where the law requires the agency to obtain the concurrence of an immigration judge before an individual is deported from the United States. ICE has refused to release more detailed data to better explain the growing rejection rates and the possible reasons behind these important shifts.

TRAC says the questions the public has “might be answered with the more extensive data that the agency has sought to withhold from the public.”

One question involves the effectiveness of the agency: is it targeting the individuals for removal who in fact should be deported? The second concerns the fairness of the process: What is the impact on those individuals the agency has wrongly sought to remove who were entitled to remain in the United States?

TRAC suggests that one reason may be the “growing pressures to increase the volume of illegal immigrants the agency catches and removes from the country.” The administration of U.S. president Barack Obama has announced new priorities targeting aliens with particularly serious criminal records.

But other studies have shown that a large proportion of those deported to not have such criminal records, and in fact have been arrested for petty crimes and traffic violations. ICE has also focused increasing resources on new initiatives such as Secure Communities while de-emphasizing large scale raids on businesses.

According to HRW’s Alison Parker, ICE’s new priorities “have yet to be transformed into action.” She suggested that reform at ICE “requires a cultural change” from ICE’s predecessor, the Immigration and Naturalization Service (INS).

TRAC says that “because ICE is withholding data that would track cases from their origins to disposition we are prevented from determining which particular initiatives may account for the sharp increase in ICE's turndown rate.”

TRAC adds that “It seems unlikely that these changes can be attributed to changes in the Immigration Courts.” During this past year there has been little change in the makeup of judges serving on the court.

TRAC’s findings are based upon a detailed analysis of 3.4 million records covering each proceeding filed in the Immigration Courts for fiscal years 1998 — 2010.

The group says that, over the past five years court records indicate there were a total of 94,949 cases that the judges said they had terminated because there were no grounds for removal. In addition, there were 151,682 cases where the judges granted relief.

In some areas of the country the court turns down ICE's removal request over half of the time. These include courts in New York, Oregon (which also covers Idaho, Montana and Alaska), Los Angeles, Miami and Philadelphia.

TRAC found that larger Immigration Courts regardless of the region of the country were seeing an increase in the rejection rates on ICE removal actions. The three courts that disposed of the largest number of cases during FY 2010 were courts in Los Angeles, New York City and Miami.

TRAC concludes that “poor targeting that weakens the government is inefficient. In addition, however, poor targeting imposes real personal and financial burdens on the individuals who have been wrongfully selected for removal. It is unfair.”