April 15, 2009

I. Overview

A 2007 Human Rights Watch report found that non-citizens who have lived in the United States for decades, including lawful permanent residents (persons with "green cards"), have been summarily deported from the country for criminal conduct, including minor crimes. The deportations occur after the non-citizen has finished serving his or her criminal sentence. They have had devastating effects upon many American families, hence the title of that 2007 report, "Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy."[1] The laws allowing for these deportations (or "removals")[2] were passed in 1996 and went into effect 12 years ago, in April 1997.

This report reveals for the first time exactly which kinds of non-citizens have been deported from the United States between 1997 and 2007 under these laws, and for what types of crimes. Our analysis is based on data Human Rights Watch obtained in August 2008 from US Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security (DHS), after a two-and-a-half-year battle under the Freedom of Information Act, described in detail in the appendix to "Forced Apart." We requested these data (the "ICE data" or the "ICE dataset") to better document the human rights violations, including impacts upon families, that occur in the course of these deportations. We also sought the data so that policymakers and the public could be better informed about ICE's use of its enforcement powers and resources. In fiscal year 2007 alone, the agency spent $2.24 billion on identification, detention, and removal of non-citizens, and a minimum of $300 million of that total was specifically earmarked for deportations on criminal grounds.[3]

One finding that overarches all others in this report is that ICE is failing to keep accurate data on deportations from the United States. Among the many data deficiencies we have identified, of primary concern is that ICE has kept the worst quality records about the population with the most pressing rights issues at stake during deportation: legally present non-citizens. When these members of the community of the United States are deported, their absence is felt because shops close, entrepreneurs lose their business partners, tax revenues are lost, and, most tragically, US citizens and lawful permanent residents are forced to confront life without their fathers, mothers, children, husbands, or wives. The data reveal that ICE has kept records on the criminal conduct forming the basis for removal from the United States for only 10.7 percent of non-citizens who were legally in the United States prior to their deportation. By contrast, ICE has kept records on the criminal conduct forming the basis for removal for 62.6 percent of non-citizens who were illegally present. When we raised our concerns with ICE about this enormous gap in data, including the possibility that individuals were being deported wrongfully and in violation of their human rights, ICE responded by explaining that it has updated its computer system and that ICE's "future data will provide more accurate and consistent information."[4]

While we look forward to these future improvements in ICE's data management, this explanation was not responsive to our expressed concern that some portion of the hundreds of thousands of people deported over the past 10 years were potentially removed from the country without legal basis and in violation of international human rights law. Between 1997 and 2007, 897,099 non-citizens were deported from the United States after serving their criminal sentences. Twenty percent were legally in the country, often living legally in the US for decades, before they were deported. It is this group of legally present non-citizens who experience some of the most egregious human rights violations in being deported from the United States. Legally present non-citizens hold the strongest claims against summary deportation as a violation of their fundamental rights to live as a family, to maintain longstanding ties to their country of primary residence, and refugees' rights to protection from return to persecution.

Our analysis of the ICE data also disproves the popular belief that the agency focuses almost exclusively on deporting undocumented (or illegally present) non-citizens with violent criminal histories. In reality, 72 percent of those who were deported between 1997 and 2007 for whom we have crime data were expelled from the United States for non-violent offenses. Of those for whom we have crime data who were legally in the country, the number is even higher: 77 percent of those legally present non-citizens were banished from the United States, often permanently, for non-violent offenses. Only 23 percent of those legally present non-citizens were deported for a violent or potentially violent offense.

When specific crimes are examined, the results are even more telling. The top four crimes forming the basis for deportation of all types of non-citizens from the United States were: entering the United States illegally (comprising 24 percent of all deportees for whom we have crime data), driving under the influence of alcohol (7.2 percent), assault (5.5 percent), and immigration crimes (for example, selling false citizenship papers) (5.5 percent). In addition to these "top four," the relatively minor crimes for which non-citizens were most frequently deported include: marijuana possession (2.2 percent), traffic offenses (1.5 percent), and disorderly conduct (0.4 percent). Of course, non-citizens were also deported for more serious violent crimes, including robbery (2.2 percent) and aggravated assault (1 percent). But contrary to popular belief and fear-mongering about criminal behavior by non-citizens, a tiny minority, just 0.3 percent, were deported for any form of intentional homicide.

The laws put in place in 1997 were both more punitive-expanding the types of crimes that can permanently sever a non-citizen's ties to the United States-as well as more restrictive, meaning that there are fewer ways for non-citizens to appeal for leniency. Hearings that used to occur in which a judge would consider non-citizens' ties to the United States, including their family relationships, business or property ownership, tax payments, and service in the US armed forces prior to deportation, were discontinued in 1997 for those convicted of any of a long list of crimes. No matter how long an individual has lived in and contributed to the United States and no matter how much his or her spouse and children depend on that individual for their livelihood and emotional support, there are no exceptions available.

A retired immigration judge shared the frustration he felt when he was unable to prevent deportation because of the strict requirements of the new laws:

My 30-year career with the Department of Justice has been exciting and stimulating. Each case I hear is a life story. I have been able to grant refuge to persons who have a genuine fear of persecution. I have been able to unite or re-unite families. On the other hand, in many cases I have had to deal with the frustration of not being able to grant relief to someone because of the precise requirements of the statute, even though on a personal level he appears to be worthy of some immigration benefit.[5]

This judge is lamenting the fact that ever since the laws were changed, his hands have been tied: Once he determines that the person before him is a non-citizen, and determines that the non-citizen has committed any one of a long list of crimes, the hearing ends and that non-citizen, who by law must already have served his or her criminal sentence, must be ordered deported. In addition, once the non-citizen is found to have been convicted of a crime that prevents him or her from raising any defenses against removal under immigration law, deportation is required. While the non-citizen can appeal this decision, his or her ties to the United States, including close family relationships, cannot be weighed by a higher court.

Judges' inability to protect family relationships in deportation decisions is a prime concern of Judge Harry Pregerson in the United States Court of Appeals for the Ninth Circuit. In his dissent to a 2007 decision deporting the parents of four US citizen children, Judge Pregerson reiterated a theme of several of his dissents when he wrote:

As I have said before, "I pray that soon the good men and women in our Congress will ameliorate the plight of families like the [petitioners] and give us humane laws that will not cause the disintegration of such families."[6]

Given the restrictive nature of the law, it is perhaps not surprising that we can reasonably estimate that at least one million spouses and children have faced separation from their family members due to these deportations. The ICE data show that of the total number of non-citizens deported on criminal grounds, 20 percent (179,038) were legally in the country, 73 percent (655,581) were illegally in the country, and 7 percent (62,480) were in an unknown status. We assume that those in the legally present category were likely to have developed family relationships inside the United States prior to their deportations. For the other categories, Table 1 illustrates our estimates of the family members affected by these deportations. The estimates contained in this table are based on findings by the Pew Hispanic Center and the US Census Bureau.

As Table 1 shows, we estimate that 1,012,734 family members, including husbands, wives, sons, and daughters, have been separated from loved ones by deportations on criminal grounds since 1997.

Table 1: Estimated Number of Family Members Separated by Deportation

A

B

C

D

E

Immigration Status

Individuals Deported on Criminal Grounds

Individuals with at least one US citizen or legally present child or spouse[7]

Remainder Individuals[8]

Family members other than deportee[9]

Spouses other than deportee in families without children[10]

Illegally present

655,581

196,674

458,907

479,884

45,890

Legally present

179,038

179,038

N/A

436,852

N/A

Unknown

62,480

18,744

43,736

45,735

4,373

Subtotal Number of Family Members Separated by Deportations

962,471

50,263

Total Number of Family Members Separated by Deportation

1,012,734

To be sure, the non-citizens discussed in this report are being deported for a reason-they have violated the criminal laws of the United States, making them subject to deportation after they have finished serving their criminal sentences. However, as the data reported here show, many of these non-citizens are a far cry from the worst and most violent offenders. Of those who were legally in the country before their criminal conduct, 77 percent were ultimately deported for non-violent crimes. Some of these non-citizens have been forced into permanent exile for non-violent misdemeanor offenses, even if they served a short sentence with a perfect record of good conduct.

Until now, ICE has not made the data in this report available to the public or to lawmakers. Instead, for reasons that are unclear, in its regular press updates the agency always highlights its deportations of violent criminals, but keeps vague the other categories of non-citizens deported. For example, in a September 2008 press release, ICE touted its deportation of 1,157 "criminal aliens, immigration fugitives, and immigration violators" after an "enforcement surge" in California. In the press release, the agency chose to describe the crimes of two individuals who had already been deported once, but had since returned to the US: a 41-year-old man from Mexico with prior convictions for "lewd acts involving a child," "battery," and "making a terrorist threat," and another Mexican national deported for "selling heroin." ICE failed to give such detailed information for the 1,155 other non-citizens deported during the same California operation.[11] ICE has made numerous other public announcements highlighting the violent crimes forming the basis for deportations, and underplaying the less violent and more minor offenses.[12]

This report seeks to end the secrecy surrounding the deportation from the United States of non-citizens after they have served their criminal sentences. We hope to set the record straight about what kinds of non-citizens are being deported and for what types of crimes. We are grateful to ICE for finally providing to us the data we requested, albeit after a two-and-a-half-year wait, and after making the implausible and alarming assertion that providing a response to our request would cause statistical reporting by the agency to "virtually grind to a halt."[13]

We urge ICE to provide similar information to the public and to policymakers on an annual basis going forward. Undoubtedly, a better informed public and government will result in better US immigration policies-an outcome that is in the interests of the people and government of the United States.

[1] Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, vol. 19, no. 3(G), July 2007, http://www.hrw.org/en/reports/2007/07/16/forced-apart-0.

[2]Throughout this report, we use the term "deportation" and "removal" interchangeably to refer to a government's policy to remove a non-citizen from its territory. We note that the terms had different meanings under earlier versions of US immigration law, and that now all such governmental actions are referred to in US law as "removals." Nevertheless, for ease of reading and simplicity we use the more commonly understood term "deportation" wherever possible.

[3]U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, "Fact Sheet: Fiscal Year 2008," December 28, 2007, http://www.ice.gov/doclib/pi/news/factsheets/2008budgetfactsheet.pdf (accessed March 20, 2009).

[4] Letter from James T. Hayes, Jr., director, Office of Detention and Removal Operations, U.S. Immigration and Customs Enforcement, to Human Rights Watch, February 2, 2009.

[5]James P. Vandello, "Perspective of an Immigration Judge," Denver University Law Review, vol. 80 (2003), p. 775.

[6]Memije v. Gonzales, 481 F.3d 1163, 1165 (9th Cir. 2007)(Pregerson, J., dissenting). Citing to Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1015 (9th Cir.2005)(Pregerson, J., dissenting). See also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1068 (9th Cir. 2006)(Pregerson, J., dissenting)(disagreeing with the majority's legal analysis and its "harsh conclusion that removal is appropriate for" petitioner, who "was admitted as a lawful permanent resident on August 20, 1969" and who together with his wife has "two United States citizen children who are now thirty-two and twenty-seven years old. After thirty-seven years in this country, [petitioner] is threatened with removal from the country that he has called home for more than two-thirds of his life.").

[7] For non-legally present, column A x 30 percent. Jeffrey S. Passel, "The Size and Characteristics of the Unauthorized Migrant Population in the U.S.," Pew Hispanic Center, March 7, 2006, p. 8, figure 7, http://pewhispanic.org/files/reports/61.pdf (accessed March 25, 2009)(showing that of 6.6 million illegally present families, 1,960,000, or 30 percent, had at least one legally present or US citizen child).

[8] Column B subtracted from column A.

[9] Column B x 2.44. The 2000 US Census found that 6.3 million households had a foreign-born non-citizen householder. A "householder" is "usually the household member or one of the household members in whose name the housing unit is owned or rented." U.S. Census Bureau, Profile of the Foreign Born Population in the United States: 2000, December 2001, p. 430. The Census Bureau found that these 6.3 million households had an average household size of 3.44 persons. Ibid., p. 4; U.S. Census Bureau, "Table FB1-Profile of Selected Demographic and Social Characteristics for the Non-U.S. Citizen Population," Census 2000 Special Tabulations (STP-159), 2000. We estimate that this average household size holds true for the foreign-born non-citizens being deported from the United States for criminal offenses (that is, deportee plus 2.44 relatives in each household).

[10] Column C x 10 percent. Passel, "The Size and Characteristics of the Unauthorized Migrant Population in the U.S.," p. 8, figure 7(showing that 10 percent of illegally present families lived in couples without children).

[11] "ICE Arrests More Than 1,000 in Largest Special Operation Yet Targeting Criminal Aliens and Illegal Alien Fugitives in California," Office of the Press Secretary, Immigration and Customs Enforcement Public Affairs, September 29, 2008, http://www.ice.gov/pi/nr/0809/080929losangeles.htm (accessed March 25, 2009).

[12] See, for example, "Colorado ICE Fugitive Operations Teams Arrest 45 Aliens," Office of the Press Secretary, Immigration and Customs Enforcement Public Affairs, January 20, 2009, http://www.ice.gov/pi/nr/0901/090130denver.htm (accessed March 20, 2009)(focusing on 3 out of 28 "criminal aliens," all of whom were deported for sexually assaulting children); "ICE Removed More Than 3,000 Criminal Aliens, Status Violators from South Texas During June," Office of the Press Secretary, Immigration and Customs Enforcement Public Affairs, July 11, 2005 (announcing the deportation of 562 "criminal aliens," ICE presumably chose to highlight three deportees who were removed for "aggravated assault," "drug trafficking," and "lewd and lascivious acts on a child"); "Philadelphia ICE Deports 144 Criminals," Office of the Press Secretary, Immigration and Customs Enforcement Public Affairs, June 22, 2005 (announcing the deportation of "144 criminals," highlighting three non-citizens who were deported for sex offenses or stalking, and referring to "other individuals" who were deported for "crimes such as homicide, heroin and cocaine smuggling, fraud, weapons offenses, sexual assault, prostitution, and extortion"); "ICE Removes 758 Criminal Aliens from 5-State Area During July," Office of the Press Secretary, Immigration and Customs Enforcement Public Affairs, August 15, 2006, www.ice.gov/pi/news/newsreleases/articles/060815neworleans.htm (accessed May 30, 2007)(highlighting the deportation of two men: a Brazilian who was convicted for assault with a deadly weapon, domestic assault, and unlawful possession of a firearm; and a Jamaican who was deported for "unnatural acts upon a child; providing obscene materials to minors; assault and battery; breaking and entering, larceny and possession of a controlled substance"; the agency did not describe the crimes of the 756 other immigrants deported during the same ICE operation). Despite these many examples, in late 2008 and early 2009 there are some ICE press releases that report in somewhat more detail: See, for instance, "ICE Arrests 117 Florida Residents in Targeted Immigration Fugitive Operation," Office of the Press Secretary, Immigration and Customs Enforcement Public Affairs, February 3, 2009, http://www.ice.gov/pi/nr/0902/090203miami.htm (accessed March 20, 2009), noting deportees' "criminal histories that spanned from assault, battery, DUI, aggravated battery, trespassing, larceny, burglary, resisting arrest, soliciting prostitution, cocaine possession, marijuana possession, molestation and transporting narcotics."

[13] Letter from Margaret M. Elizalde, Supervisory Program Analyst, US Immigration and Customs Enforcement, to Human Rights Watch, January 11, 2007.