Why Data on New Deportation Cases is More Revealing Than Actual Deportations
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For journalists covering immigration enforcement, deportation statistics get all the attention. It’s understandable. Unlike most deportation data which is messy and jargon-ridden, deportation numbers feel concrete, even non-technical. One deportation means one person ejected from the United States. Simple, right?
But there’s a problem.
Using deportation statistics to characterize immigration enforcement now is misleading. Deportation cases (technically “removal” cases) take months and years to complete. In 2016, I witnessed the final hearing in a removal case that started in 1980. This means that a person deported in, say, August 2020, was almost certainly not put into removal proceedings in August 2020, or August 2019, or August 2018, or… you get the idea. A deportation data point in August 2020 doesn’t really represent what the world is like in August 2020. It represents a point in the past.
What’s the solution?
If you really want to understand immigration enforcement today, I argue that you couldn’t do much better than looking at new removal cases.
New cases begin with a Notice to Appear or “NTA.” An NTA is issued by the Department of Homeland Security (DHS) as a way for them to say, “We think we have a good reason to remove you.” DHS gives the individual (called a “respondent”) a copy of the NTA and they give another copy to the immigration courts, which are under the Department of Justice (DOJ). At this point, a respondent is in removal proceedings (The DOJ and DHS are two of many agencies that are directly supervised by the President, and like the siblings they are, sometimes they work together in mischievously frustrating ways and sometimes they fight.)
There are basically three outcomes of removal proceedings. The immigration judge can decide that the respondent is allowed to stay in the United States either temporarily or permanently, or the immigration judges can decide that the respondent should leave. If it’s the latter, the judge will issue a removal order which Immigration and Customs Enforcement (ICE) is responsible for carrying out.
Because removal proceedings can take a long time, because removal cases can be extremely complex, and because the immigration courts have a backlog of over 1,200,000 cases (yes, that’s 1.2 million), it may take years until a judge decides to issue a removal order and possibly years after that before ICE effectively acts on the removal order. And because different cases move at different speeds, the deportation data for any given month doesn’t really represent what’s going on in the immigration system in that month.
However, the moment when the Department of Homeland Security issues an NTA? That’s where things get interesting. Our public understanding of the process of issuing an NTA remains murky at best, not complicated exactly, just not well-studied thank in no small part to ICE’s recalcitrance towards, well, everyone who isn’t ICE. But because NTA’s are discretionary, the political disposition of a presidential administration can easily drive NTA’s up or down. (This is known as “prosecutorial discretion.”)
In short, NTA’s — not deportations — are the better indicator of an administration’s decision to be aggressive or judicious about immigration enforcement.
In a later post, I’ll look more closely at the data on NTA’s.