Decline in Federal Criminal Immigration Prosecutions


The latest available data from the Justice Department show a marked decline in federal criminal immigration prosecutions. As of March 2012, prosecutions resulting from referrals by Immigration and Customs Enforcement (ICE) were down 12 percent compared with last year's figures, while criminal prosecutions resulting from investigations by Customs and Border Protection (CBP) fell 6 percent.

Comparisons of the number of defendants charged with immigration offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys.


ICE Criminal Prosecutions Down

Until February 2011, ICE criminal prosecutions had been climbing, reaching a peak of 21,686 on an annual basis (see Figure 1). Since then, using a 12-month moving average, numbers can be seen to have been falling. For the 12 months ending in March 2012, there were only 19,149 new criminal prosecutions – some 12 percent fewer.

This fall-off in ICE criminal prosecutions was unexpected.  There does not appear to have been any corresponding decrease in ICE deportation activity; indeed, agency announcements continue to promise that deportations should reach around 400,000 during FY 2012. And the agency's estimate is consistent with new case-by-case ICE deportation data just released to TRAC which indicate that there has been no let-up in the monthly volume of ICE deportations which totaled 34,630 during the month of April 2012

Figure 1. Federal Criminal Prosecutions from Immigration and Customs Enforcement (ICE) Investigations
Federal Criminal Prosecutions from Immigration and Customs Enforcement (ICE) Investigations

ICE prosecution numbers display considerable month-to-month seasonal variation which is smoothed in Figure 1 by use of a 12-month running total. This means that the height of the bar for a given month represents the total number of prosecutions for the 12-month period ending that month, allowing a much clearer picture of long term trends. The month-by-month prosecution figures along with the accompanying 12-month running totals are provided in Table 2 which appears at the end of this report.

Using these 12-month running totals, Figure 1 reveals that there was a fairly steady rise in the number of criminal prosecutions until March 2009, at which point prosecution levels plateaued until they started climbing again in March 2010. Prosecutions then peaked in the 12-month period ending in February 2011. After that point in time, prosecutions began to fall, with the decline accelerating during the past five months.


CBP Apprehensions and the Odds of Criminal Prosecutions

A similar graph in Figure 2 displays the parallel 12-month running totals for CBP prosecutions (detailed month-by-month prosecution figures can be found in Table 2 at the end of this report).

CBP prosecutions display a sharp rise beginning in February 2008. One year later in February 2009 CBP criminal prosecutions reached a peak of 80,147 over a 12-month period. However, over the past three years (with some month-to-month variation) there has been a steady decline in criminal prosecutions resulting from referrals from the Border Patrol and other CBP officers catching violators at ports of entry. For the 12-month period ending in March 2012, CBP prosecutions had fallen to 65,440 — 18 percent below their peak.

These declines are a natural outgrowth of the declines in apprehensions along the southwest border. See the earlier June 2011 TRAC study for documentation of these trends.

Figure 2. Federal Criminal Prosecutions from Customs and Border Protection (CBP) Investigations
Federal Criminal Prosecutions from Customs and Border Protection (CBP) Investigations

Border Patrol apprehensions along the southwest border have, however, been falling at a much faster rate than the declines in criminal prosecutions. This means that for an individual caught illegally entering the country, the odds of criminal prosecution have actually moved sharply up, not down. During FY 2011, around 20 percent of apprehensions resulted in a CBP-referred criminal prosecution — up from 16 percent in FY 2010 and only 2 percent as recently as FY 2006. See Table 1 and Figure 3.


Table 1. Likelihood of CBP Criminal
Prosecution if Apprehended
Fiscal Year Border Patrol Apprehensions* CBP Criminal Prosecutions** Ratio
2006 1,089,136 26,116 2%
2007 876,787 29,593 3%
2008 723,840 67,204 9%
2009 556,032 77,669 14%
2010 463,382 72,572 16%
2011 340,242 69,080 20%
* based on latest Dept. of Homeland Security data
** based on latest Dept. of Justice data
Figure 3. Likelihood of CBP Criminal
Prosecution if Apprehended
Likelihood of CBP Criminal Prosecution if Apprehended

Criminal prosecution, of course, is not the only sanction that awaits individuals apprehended illegally crossing the border. Prosecution numbers are dwarfed by the volume of CBP deportations. Indeed, for many years, deportations by CBP have far outpaced the more widely reported ICE annual deportation numbers.


Table 2. Federal Criminal Prosecutions from Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) Investigations
Month and Year Monthly Number Annual Number*
CBP ICE CBP ICE
September 2006 2,012 1,179 26,116 13,032
October 2006 1,890 1,154 25,604 13,257
November 2006 1,994 1,172 25,503 13,511
December 2006 1,680 1,153 25,329 13,671
January 2007 2,455 1,056 25,502 13,792
February 2007 2,457 1,106 25,885 13,889
March 2007 2,878 1,413 26,439 13,982
April 2007 2,905 1,294 27,488 14,134
May 2007 2,884 1,441 28,194 14,310
June 2007 2,678 1,294 28,440 14,341
July 2007 2,238 1,158 28,430 14,553
August 2007 2,829 1,338 28,900 14,758
September 2007 2,705 1,275 29,593 14,854
October 2007 3,129 1,234 30,832 14,934
November 2007 2,427 1,224 31,265 14,986
December 2007 2,931 1,073 32,516 14,906
January 2008 3,372 1,189 33,433 15,039
February 2008 5,600 1,285 36,576 15,218
March 2008 7,289 1,416 40,987 15,221
April 2008 6,982 1,785 45,064 15,712
May 2008 7,027 1,530 49,207 15,801
June 2008 7,583 1,523 54,112 16,030
July 2008 6,911 2,237 58,785 17,109
August 2008 5,289 1,540 61,245 17,311
September 2008 8,664 1,476 67,204 17,512
October 2008 7,462 1,543 71,537 17,821
November 2008 5,829 1,497 74,939 18,094
December 2008 5,149 1,516 77,157 18,537
January 2009 6,029 1,361 79,814 18,709
February 2009 5,933 1,574 80,147 18,998
March 2009 7,173 1,710 80,031 19,292
April 2009 6,518 1,553 79,567 19,060
May 2009 5,728 1,534 78,268 19,064
June 2009 7,565 1,663 78,250 19,204
July 2009 7,126 1,684 78,465 18,651
August 2009 6,692 2,101 79,868 19,212
September 2009 6,465 1,593 77,669 19,329
October 2009 5,741 1,496 75,948 19,282
November 2009 5,292 1,419 75,411 19,204
December 2009 5,442 1,510 75,704 19,198
January 2010 4,762 1,300 74,437 19,137
February 2010 5,381 1,490 73,885 19,053
March 2010 7,089 2,004 73,801 19,347
April 2010 7,816 2,108 75,099 19,902
May 2010 7,412 1,701 76,783 20,069
June 2010 6,847 1,885 76,065 20,291
July 2010 5,435 1,671 74,374 20,278
August 2010 5,575 1,622 73,257 19,799
September 2010 5,780 2,003 72,572 20,209
October 2010 5,130 1,661 71,961 20,374
November 2010 4,962 1,928 71,631 20,883
December 2010 4,303 1,851 70,492 21,224
January 2011 4,305 1,599 70,035 21,523
February 2011 5,349 1,653 70,003 21,686
March 2011 6,926 1,987 69,840 21,669
April 2011 7,571 1,779 69,595 21,340
May 2011 6,538 1,755 68,721 21,394
June 2011 6,980 1,776 68,854 21,285
July 2011 5,379 1,534 68,798 21,148
August 2011 6,113 1,707 69,336 21,233
September 2011 5,524 1,564 69,080 20,794
October 2011 4,921 1,618 68,871 20,751
November 2011 3,877 1,460 67,786 20,283
December 2011 3,559 1,324 67,042 19,756
January 2012 4,671 1,356 67,408 19,513
February 2012 4,869 1,489 66,928 19,349
March 2012 5,438 1,787 65,440 19,149
* Annual figures are based on 12-month running totals. For example, the annual total of 65,440 for CBP in March 2012 represents the sum of monthly totals for the 12 month period of April 2011 through March 2012, while the annual total of 66,928 for CBP in February 2012 represents the sum of the monthly totals for the 12 month period of March 2011 through February 2012.