The government's enforcement of the immigration laws involves many agencies, many often overlapping programs, and many laws. And even for experienced experts in the field this maze sometimes is confusing. Briefly outlined here, therefore, are several ways the government can initiate the deportation of noncitizens from the United States.
Immigration Court Deportation Proceedings
The oldest official and most frequently used channel for processing deportation cases is the immigration court system, now administered by the Executive Office for Immigration Review (EOIR), an agency in the Justice Department. [Here the terms deportation, exclusion and removal are used interchangeably.] The system was established by Congress to conduct deportation proceedings, specifically to decide "whether foreign-born individuals, who are charged by the Department of Homeland Security (DHS) with violating immigration law, should be ordered removed from the United States."
Decisions on the Department of Homeland Security (DHS) requests for removal orders are made by the 235 Immigration Judges who sit on 59 separate courts located around the country. These judges hold hearings in several hundred separate locations, including many located in detention facilities administered by Immigration and Customs Enforcement (ICE), an agency of the DHS. In the detention facilities noncitizens can be held awaiting a decision on the outcome of their cases. Unlike the situation in federal criminal courts, where legal services for the indigent are provided by the government, individuals in the Immigration Courts are not entitled to a lawyer at government expense although they are permitted to obtain representation privately.
To initiate a removal proceeding against an individual, ICE files a charging document — a "Notice to Appear" — in any one of the Immigration Courts. The charging document orders the individual to appear before an Immigration Judge and provides notice of the specific immigration violations that ICE has alleged to support its request for the deportation order. Once a removal order is approved by an Immigration Judge, the named person is not only subject to deportation but also is barred from returning to this country for a period of years, sometimes for life.
According to case-by-case records from the EOIR, ICE in the last fiscal year filed requests for 244,148 new removal orders in the Immigration Courts. In the ten years since 9/11 the government has initiated more than two and a quarter million deportation proceedings.
An app accompanying this report allows the public and members of the oversight community — lawyers, public interest groups, reporters and others — to obtain very detailed nationality-by-nationality data on deportation proceedings for every state, court, and hearing office.
DHS Administrative Deportation Orders: A Second Channel
Under specific and more limited circumstances Congress has also given the DHS authority to issue administrative removal orders that bypass the Immigration Courts. For example, the Customs and Border Protection (CBP) – yet another part of the DHS – assigns agents to the official "ports of entry" and along the nation's border. They are authorized to issue what are called "expedited removal orders." Since 9/11, CBP has considerably expanded who within the agency has delegated authority to issue these orders. This has increased their use. Last year CBP reported it issued 111,116 expedited removal orders.
Another example of the expansion of the DHS's broad administrative authority to remove individuals involves ICE. Under the law it is responsible for handling immigration enforcement away from the borders. With this authority, ICE can issue removal orders for so-called "aggravated felons" if they are not already legal permanent residents ("green card" holders). Because ICE is illegally withholding information from TRAC, the number of these ICE actions cannot be fully determined. From the last data obtained by TRAC, however, a preliminary count indicates that approximately 13,000 individuals were removed under the aggravated felony provision of the law during FY 2006 (see TRAC's earlier report on this topic).
The DHS also has the authority by statute to reinstate prior removal orders. Typically this means that without going through the Immigration Courts, if an individual was deported and — while barred from reentry — returns to the United States, the DHS can reinstate the prior removal order and again deport them. There has been a sharp increase in the use of this reinstatement authority. Last year, DHS reported 130,840 individuals were deported using this authority.
Increased "Criminalization" of Immigration Violators: A Third Channel
Rather than initiating removal proceedings in the Immigration Courts or through its administrative powers, the government can bring individuals it suspects of entering the country illegally into the federal district courts on criminal charges. The law defines an "illegal entry" as a petty misdemeanor — on par with certain traffic offenses on federal parkways. Prior to 9/11 such criminal prosecutions were far less common than they now are even though the reported number of border apprehensions of illegal entrants was much higher in the decade before 9/11. Criminal prosecutions for illegal reentry — a felony — have also been rising sharply. [The law also establishes that entering the country legally but overstaying a visa is not a criminal offense of any type, just a purely administrative violation.]
While the federal criminal courts are not set up to handle deportation cases per se, in the post-9/11 years there has been a steady "criminalization" of illegal entry and reentry and these mechanisms have become a by-way in the deportation process. According to case-by-case data TRAC receives from the Department of Justice, since FY 2009 the number of such prosecutions has reached between 70,000 and 80,000 each year (see recent TRAC report and index to TRAC's earlier studies).
Well over 90 percent of the individuals charged with these crimes plead guilty. Often, those prosecuted for illegal entry receive no further prison time beyond the period they spent in jail before their conviction and sentencing. Typically these individuals are then deported. In some plea agreements the convicted consent to being deported. However, if originally picked up by Border Patrol or Customs and Border Protection agents, as noted above the DHS has the administrative authority to deport these individuals without going through the Immigration Courts.
Additional TRAC Immigration Enforcement Data and Tools
To access additional data using other TRAC immigration enforcement tools, go to this directory of data tools.