Spike in Criminal Prosecutions Caused
by Jump in Immigration Referrals


Table 1. Federal Criminal Prosecutions, December 2012
Total Referred by CBP
Number latest month 15,313 8,027
Increase from previous month 1,879 1,881
Percent change from previous month 14% 31%
A total of 15,313 federal prosecutions in December 2012 marked an increase of 14 percent from the previous month, according to Justice Department data analyzed by the Transactional Records Access Clearinghouse (TRAC).

But this distinct jump in prosecutions for the nation as a whole was entirely the result of an even more unusual increase in the federal criminal referrals from Customs and Border Protection (CBP) agents. A total of 1,881 more CBP-referred criminal prosecutions occurred in December, a surge of nearly one-third from the previous month's count. See Table 1.

With the possible reform of immigration laws a top priority issue for the Obama Administration, Congress and a wide range of public interest groups, changes in how current laws are being enforced could have significant political implications for all parties.

This sharp increase in CBP-referred prosecutions was not felt along the whole southwest border with Mexico. Instead, it was almost entirely focused on just two of the border's five federal districts: Texas South and Texas West. In fact, in each of these districts there was a 50 percent or higher jump in prosecutions, largely for illegal entry. (The growth was mainly concentrated in their Laredo and Del Rio offices.)

The enforcement trends in these two hot spots contrasted sharply with the patterns that were found in three other border districts — Arizona, New Mexico and California South. Both Arizona and New Mexico showed declines of 25 percent or more. The Southern District of California (San Diego) also fell, but by a lower amount (7 percent). See tables at the end of this report for the figures by federal district (Table 3) and office within each southwest border district (Table 4).

The reasons for the major jump in prosecutions in Texas South and Texas West — but not in other border districts — are unclear. One possible explanation is that there has been a surge in the apprehensions in these locales. (The government has not yet published these counts.) A second possibility is that the agents working in the two districts have adopted a tougher enforcement policy. The CBP public affairs office in Washington has failed to respond to two separate queries by TRAC to determine which, if either, explanation is correct.

Another unusual aspect of the recent surge is that it did not follow the usual seasonal pattern of recent years in which December counts have been historically low relative to other months, presumably reflecting fewer apprehensions at that time of year. (The cyclical changes for the last four years are shown in Figure 1.) The pronounced rise in prosecutions in November and December thus marks a striking departure, with the December count the highest seen in any month of the Obama Administration.


Figure 1. CBP-Referred Criminal Prosecutions, December 2008 - December 2012

Analysis of tracking databases maintained by the office of each U.S. Attorney uncovered both the overall prosecution counts for the nation as a whole and the dramatic, hard-to-explain changes in the enforcement actions in two of the nation's 90-plus federal districts. These databases are released to TRAC on a monthly basis by the Executive Office for United States Attorneys as a result of Freedom of Information Act (FOIA) litigation brought by TRAC.


Illegal Entry Prosecutions Dominate

Included in the case-by-case records obtained by TRAC is information about what the Justice Department calls the "lead charge" and the sentence that was imposed. The data show that the majority of defendants received no prison time other than time served while waiting for their cases to be resolved (see Table 2). During the first three months of FY 2013, nearly three out of four prosecutions (73 percent) were for illegal entry, a petty offense under Title 8 Section 1325 of the United States Code. In second place were prosecutions for illegal re-entry, a more serious felony charge. A total of 20 percent were re-entry prosecutions. For those convicted on the basis of the second charge the median prison sentence was 6 months.

Looking across the list of lead charges, almost all prosecutions (96 percent) were for some type of immigration violation. Prosecutions involving drugs made up only 3.5 percent.

Table 2. Top Ten Lead Charges: CBP-Referred Criminal Prosecutions, FY 2013 (first 3 months)*
Lead Charge Number Percent Median Prison Sentence
All 18,964 100.0% 0 months
08 USC 1325 - Entry of alien at improper time or place; etc. 13,745 72.5% 0 months
08 USC 1326 - Reentry of deported alien 3,741 19.7% 6 months
21 USC 846 - Drugs: attempt and conspiracy 587 3.1% 6 months
08 USC 1324 - Bringing in and harboring certain aliens 448 2.4% 8 months
18 USC 1546 - Fraud and misuse of visas, permits, and other documents 97 0.5% 0 months
21 USC 841 - Drug Abuse Prevention & Control-Prohibited acts A 84 0.4% 18 months
18 USC 1028 - Fraud and related activity - ID documents 62 0.3% 0 months
18 USC 1544 - Misuse of passport 44 0.2% 0 months
18 USC 2 - Aiding and Abetting 37 0.2% 1 month
18 USC 1028A - Aggravated Identity Theft 33 0.2% 3 months
* Federal defendants prosecuted from October to December 2012.

What Do the Increases in Border Prosecutions Signify?

As noted above, a jump in criminal prosecutions could reflect either an increase in border apprehensions in Texas or a harsher policy for sanctioning individuals who have been caught. The Bush-initiated Operation Streamline, which began in December 2005, announced "zero tolerance" for illegal entry across specific segments of the U.S.-Mexico border, and called for federal criminal charges to be brought for every person who crossed the border illegally. This continues to be the official policy under President Obama.

(A criminal prosecution, of course, is not the only sanction that can be imposed on individuals who have been apprehended while illegally crossing the border. Customs and Border Protection agents also possess the authority to remove individuals administratively without the need for any order by a judge. This so-called "expedited removal" bars individuals from re-entering the United States again from some years. But Operation Streamline shifted the focus to criminal prosecution.)

Operation Streamline, plus the expanding number of border patrol agents, resulted in a deluge of criminal prosecutions for illegal entry and illegal re-entry that flooded federal courts situated along the southwest border with Mexico. See TRAC report documenting the early impact of Operation Streamline.

However, the number of Border Patrol apprehensions was generally declining at the point that Operation Streamline went into effect. It was inevitable that at some point the declining number of apprehensions along the border caught up with the expanding proportion of these apprehensions being criminally prosecuted. As a result, Border Patrol referrals for criminal prosecution began falling. As TRAC recently reported, a CBP spokesman in November 2012 explained this decline in CBP-referred prosecutions as a direct result of the fall in border apprehensions:

"We believe that the investment the American people have made in personnel, infrastructure and technology on the borders of the United States are continuing to pay dividends in the form of lower apprehension numbers."

(There are, of course, other influential factors, including shifts in the U.S and Mexican economies. For more numbers on these trends see TRAC's June 2012 report.)

Thus, the unusually high December 2012 prosecution figures are noteworthy not only because they are so high but because these numbers appear to mark a clear reversal in trends. While comparable data for January and February of 2013 are not yet available, a federal public defender spokesperson for the Del Rio, Texas area indicated that numbers of defendants they are currently seeing during February has remained significantly high compared with previous months.

So what has caused this jump? TRAC contacted parties involved in processing criminal cases or in border security; those who were willing to speak stated that they knew of no change in policy or in staffing that might explain the increase. Federal prosecutors prosecute virtually all referrals they receive from Customs and Border Protection, so the real issue is: does the jump in CBP referrals to federal prosecutors reflect a real increase in apprehensions along the South and West Texas border?

As noted above, as of this time the CBP's public affairs office in Washington has not responded to two queries from TRAC. The Border Patrol press officers for both hot spots — Laredo, Texas and Del Rio, Texas — were also contacted. The Del Rio spokesperson, Dennis Smith, indicated that the rise reflected in CBP referrals recorded by the U.S. Attorney's office in December "should" reflect rising border patrol apprehensions. However, he was unwilling to release the actual Border Patrol apprehension numbers that would corroborate whether this was true. The BP spokesperson for the Laredo office didn't return our phone calls.

An alternative explanation for the jump would be that there has been increased emphasis on tough border enforcement accompanying the Administration's push to pass immigration reform, but why this would mostly happen in only two districts is unclear.



Table 3. Criminal Prosecutions Referred by Customs and Border Protection*
Month U.S. Southwest Border Judicial Districts
Texas S. Texas W. Arizona N. Mexico Cal. S.
December 2008 5,149 2,094 836 1,464 270 318
January 2009 6,029 1,886 1,629 1,639 415 309
February 2009 5,933 1,458 1,792 1,824 434 286
March 2009 7,173 2,116 1,968 2,008 599 352
April 2009 6,518 2,219 1,364 1,922 556 305
May 2009 5,728 1,887 1,293 1,702 497 232
June 2009 7,565 3,255 1,208 2,209 507 250
July 2009 7,126 3,102 1,068 2,111 488 215
August 2009 6,692 2,771 1,036 1,842 598 305
September 2009 6,465 2,228 1,157 1,975 503 431
October 2009 5,741 2,097 858 2,031 380 210
November 2009 5,292 1,687 543 2,354 307 275
December 2009 5,442 1,895 1,288 1,614 269 263
January 2010 4,762 1,278 936 1,729 392 308
February 2010 5,381 1,583 1,197 1,733 454 321
March 2010 7,089 1,825 1,551 2,510 649 382
April 2010 7,816 2,250 1,815 2,547 699 343
May 2010 7,413 2,140 1,444 2,815 593 317
June 2010 6,847 2,019 1,170 2,844 386 300
July 2010 5,435 1,030 921 2,799 263 314
August 2010 5,575 1,439 890 2,581 274 269
September 2010 5,780 2,215 743 1,784 213 729
October 2010 5,130 1,563 929 1,991 302 231
November 2010 4,962 1,678 803 1,928 247 221
December 2010 4,303 1,124 663 1,973 171 291
January 2011 4,305 1,595 549 1,544 270 252
February 2011 5,349 1,622 1,009 2,013 348 252
March 2011 6,926 2,182 899 2,813 643 281
April 2011 7,571 2,049 1,689 2,789 619 267
May 2011 6,538 1,829 1,246 2,480 496 393
June 2011 6,980 1,964 1,371 2,736 361 412
July 2011 5,379 1,558 1,201 1,817 304 392
August 2011 6,113 2,063 1,203 2,072 236 437
September 2011 5,524 2,089 959 1,590 262 479
October 2011 4,919 1,798 1,349 1,134 220 293
November 2011 3,878 1,699 751 857 205 262
December 2011 3,558 1,368 1,074 648 132 244
January 2012 4,670 1,705 1,229 1,125 257 261
February 2012 4,868 1,770 1,303 1,084 380 242
March 2012 5,431 1,856 1,511 1,168 483 302
April 2012 5,990 2,237 1,878 1,071 401 287
May 2012 6,954 2,273 2,684 1,213 321 345
June 2012 5,841 1,905 975 2,139 425 288
July 2012 6,250 2,281 1,826 1,414 309 350
August 2012 6,036 3,013 1,436 709 476 290
September 2012 5,134 2,695 838 831 402 286
October 2012 4,791 2,297 663 937 521 269
November 2012 6,146 2,160 2,202 1,034 406 273
December 2012 8,027 3,334 3,308 775 301 254
Change Dec vs Nov:
Number 1,881 1,174 1,106 -259 -105 -19
Percent 31% 54% 50% -25% -26% -7%
* Based upon month in which initial court filing occurs.


Table 4. Federal Prosecutions Southwest Border Area (first 3 months of FY 2013)
Location* October November December
Albuquerque 38 28 28
Austin 28 16 29
Brownsville 279 490 254
Corpus Christi 21 23 9
Del Rio 320 1,960 3,038
El Centro 66 59 72
El Paso 252 209 200
Laredo 1,272 848 2,263
Las Cruces 483 378 273
McAllen 725 798 808
Pecos/Alpine 63 17 41
Phoenix 76 42 90
San Diego 201 212 179
Tucson 656 616 478
Yuma 207 378 210
* Location is where the federal prosecutor who handled each case was based.