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Lies, damned lies, and Obama’s deportation statistics

CALEXICO, CA – NOVEMBER 15: A U.S. Border Patrol agent looks for tracks along the U.S.-Mexico border fence on November 15, 2013 in Calexico, California. The fence separates the large Mexican city of Mexicali with Calexico, CA, and is a frequent illegal crossing point for immigrant smugglers. (Photo by John Moore/Getty Images)
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Lies, Damned Lies, and Obama’s Deportation Statistics

This is a guest post from Anna O. Law, the Herbert Kurz Associate Professor of  Constitutional Law and Civil Liberties at CUNY Brooklyn College. She is the author of The Immigration Battle in American Courts.

What is the trend in deportation of immigrants under the Obama administration? This seemingly simple question is proving very hard to answer. Consider three characterizations from recent media reports. Here is The Economist in February 2014:

America is expelling illegal immigrants at nine times the rate of 20 years ago; nearly 2m so far under Barack Obama, easily outpacing any previous president.

In April, the Los Angeles Times wrote:

A closer examination shows that immigrants living illegally in most of the continental U.S. are less likely to be deported today than before Obama came to office, according to immigration data. Expulsions of people who are settled and working in the United States have fallen steadily since his first year in office, and are down more than 40% since 2009.

And last week, Julia Preston of the New York Times reported that in the fiscal year 2013, the immigration courts saw a 26 percent drop in the number of people who have been deported, thereby producing:

… a different picture of President Obama’s enforcement policies than the one painted by many immigrant advocates, who have assailed the president as the ‘deporter in chief’ and accused him of rushing to reach a record of 2 million deportations. While Obama has deported more foreigners than any other president, the pace of deportations has recently declined.

Somehow, the Obama administration is simultaneously responsible for the highest rate of deportation in 20 years and a 26 percent drop in deportation. What is going on here? As it turns out, changes in immigration law, terminology and classification are causing this confusion.

One problem is the continued use of “deportation” in virtually all media reporting. In actuality, that category has been obsolete in immigration law since 1996. Prior to 1996, immigration law distinguished between immigrants who were “excluded,” or stopped and prevented from entering U.S. territory, and those who were “deported,” or expelled from the United States after they had made their way into U.S. territory. After 1996, both exclusion and deportation were rolled into one procedure called “removal.” At that point, the term “deportation” no longer had any meaning within the official immigration statistics. Its continued use in media reports is part of the confusion.

The large number of immigrants who are apprehended, usually but not exclusively along the southwestern border, and prevented from entering the country were part of a category called “voluntary departure” before 2006. Now that is called “return,” which also includes the subcategory of  “reinstatement.”  There is also a large category of “expedited removals” of persons that do not appear before an immigration judge but the procedure carries all the sanctions as a judge ordered removal.

These would-be immigrants accept this sanction that forgoes a court appearance before an immigration judge because formal removal — in which the U.S. government runs them through legal proceedings and pays for their return to their home country — would result in a multi-year bar (five to 20 years) on their eligibility to legally reenter the United States. Critics deride this policy “as catch and release.” The consequences of a return are much less harsh than a formal removal because the returned immigrant could come back legally, and presumably illegally, at any time.

Thus, comparing the deportation statistics across different presidential administrations is dicey because it is unclear what categories of people are actually being counted and categorized. Moreover, different administrations choose to emphasize different statistics. Dara Lind notes that the Bush administration seems to have reported removals and returns together, but Obama’s administration has emphasized only its number of removals.

Meanwhile, many media reports continue to use the term “deportation” when they mean either return or removal or some subset of those. The Department of Homeland Security that issues official statistics must now try to retrofit new legal categories to old data, and even it cannot excise the term deportation altogether because pre-1996, there were, in fact, deportations.

Confusion about terminology helps explain the conflicting accounts cited above.  The aforementioned New York Times article focuses on return numbers. But the Economist is also right, because if you combine the Obama’s return and removal numbers, he is well over the controversial 2 million mark.

This confusion enables political spin, too. If you want to portray Obama as weak on enforcement, use the removal numbers, which, compared to his predecessors, are lower. If you want to make Obama look tougher on enforcement, combine the return and removal numbers (like George W. Bush apparently did) or use the now meaningless “deportation”; both moves would conflate return and removal — and boost the overall number of expulsions. 

But don’t expect these nuances to make it into political discourse anytime soon.  Way back in 1987, the U.S. Court of Appeals for the 9th Circuit described immigration law as “second in complexity only to the internal revenue code.” It would appear little has changed.

CORRECTION: The original post claimed that Obama had de-emphasized removals and concentrated on returns and that the ratio of his removals to returns was skewed toward returns compared to his predecessors.  That claim is not correct because based on DHS’s data, (Table 39:  Aliens Removed and Returned, FY 1892-2012)  his cumulative numbers since taking office show Obama has removed a total of 1,974,688 people and returned 1,609,055 others.  There have been more returns than removals only in FY 2009 and 2010.  Moreover, comparing across administrations is not wise given the changes in law and counting procedures.