Despite Rise in Felony Charges,
Most Immigration Convictions Remain Misdemeanors

Table 1. Criminal Convictions for
Illegal Entry or Re-entry
Fiscal Year Immigration Cases Illegal Entry (8 USC 1325) Illegal Re-entry (8 USC 1326)
2004 31,547 18,375 9,044
2005 33,178 17,721 10,409
2006 35,160 17,876 11,953
2007 33,740 16,786 11,372
2008 71,587 49,808 14,911
2009 88,065 62,047 19,372
2010 82,437 54,495 21,916
2011 77,697 49,085 23,186
2012 88,908 61,382 22,342
2013 92,215 68,026 19,898
2014* 36,256 24,647 9,716
*Covers only the first six months of FY 2014 (October 2013 - March 2014).

Convictions for the petty offense of illegal entry (8 USC 1325) continue to dominate the criminal enforcement of federal immigration laws. During the first six months of fiscal year 2014, according to the case-by-case government records analyzed by the Transactional Records Access Clearinghouse (TRAC), two out of three immigration convictions — 24,647 out of a total of 36,256 criminal convictions — were for this offense. This ratio is little changed from the pattern of the last decade, which is striking given a recent surge in the number of people charged with felony illegal re-entry (8 USC 1326). While there was some year-to-year variation during the previous 10 year period from FY 2004-FY 2013, overall 65 percent of all immigration convictions were for illegal entry. During the first six months of the current fiscal year, 68 percent were convictions for the petty offense of illegal entry, which is punishable by up to six months in jail.

Only around one out of every four immigration convictions have been for the more serious charge of illegal re-entry (8 USC 1326), a felony. During the first six months of FY 2014, 9,716 out of the total of 36,256 immigration convictions were for illegal re-entry — or 27 percent. This is little changed from the average of 26 percent during the previous 10 years. See Table 1 for actual numbers. Figure 1 displays illegal entry versus illegal re-entry convictions year-by-year.


Figure 1. Criminal Convictions for Illegal Entry or Re-entry

The picture that emerges from examining convictions is quite different from the one documented in TRAC's May 13, 2014 report covering the same period but focusing on the offenses with which noncitizens were being charged rather than convicted. As reported there, during the first six months of FY 2014 prosecutions for illegal re-entry surpassed the number for illegal entry. TRAC's latest analysis, however, shows that the illegal re-entry charge is increasingly pled down to the lesser illegal entry charge, so that the increase in felony charges has not lead to an increase in felony convictions.

The remainder of this report focuses on the dynamics of charging illegal re-entry more often, while seeing little, if any, change in actual convictions for this offense.

Plea Bargaining and Immigration Offenses

Table 2. Outcomes for Original Charge
of Illegal Re-entry*
Fiscal
Year
Charged Illegal Re-entry and Convicted of:
Illegal Re-entry Illegal Entry
Number Percent Number Percent
2004 9,044 84% 1,760 16%
2005 10,409 85% 1,767 15%
2006 11,953 76% 3,709 24%
2007 11,372 73% 4,133 27%
2008 14,911 73% 5,625 27%
2009 19,372 75% 6,593 25%
2010 21,916 67% 10,834 33%
2011 23,186 68% 10,806 32%
2012 22,342 61% 14,241 39%
2013 19,898 57% 15,012 43%
2014** 9,716 51% 9,179 49%
*Excludes some cases where conviction was for some other offense, the defendant was found not guilty, or charges against the defendant were dismissed.
**Covers only the first six months of FY 2014 (October 2013 - March 2014).

Almost all individuals charged with a criminal federal offense end up convicted. For all federal prosecutions completed during the first six months of fiscal 2014 — from drug offenses to white collar violations, etc. — 91 percent ended with a conviction of one type or another, according to the TRAC analysis. For that subset of individuals criminally charged with immigration offenses, 97 percent ended up convicted, according to TRAC's analysis of Department of Justice data.

Further, very few individuals insist on going through a trial to determine guilt or innocence. For example, in cases where illegal re-entry was the lead charge, 99.8 percent of those convicted pled guilty without going to trial. As an incentive for pleading guilty, the prosecutor can agree to reduce the charge and hence the potential sentence. For example, the prosecutor may charge a non-citizen with illegal re-entry, but be willing to reduce the charge to illegal entry in exchange for a guilty plea.

Figure 2 shows year-by-year numbers for the outcome of those charged with illegal re-entry, and whether the conviction that resulted was for the felony offense of illegal re-entry versus the petty misdemeanor of illegal entry. A decade ago, 84 percent of those charged with illegal re-entry were convicted of that offense. Only 16 percent of the cases pled down to simple illegal entry. Five years ago, the percentages were 75 percent convicted of illegal re-entry versus 25 percent pled down to illegal entry. This percentage has continued to fall. In fact, during the first six months of this fiscal year, only half (51%) of those charged with illegal re-entry ended up convicted of that offense. The other half pled down to the petty offense of illegal entry.


Figure 2. Charged with Illegal Re-entry and Convicted of Misdemeanor Illegal Entry

District Practices Differ

Table 3. Outcomes for Original Charge of Illegal Re-entry, by District (October 2012 - March 2014)*
District Charged with Illegal Re-entry
and Convicted of:
Illegal Re-entry Illegal Entry
Number Percent Number Percent
SW Border Subtotal 21,683 47% 24,144 53%
Arizona 3,010 11% 23,266 89%
California South 2,576 81% 623 19%
New Mexico 4,338 98% 106 2%
Texas South 5,768 99% 38 1%
Texas West 5,991 98% 111 2%
Rest of U.S. 7,931 99% 47 1%
*Excludes some cases where the conviction was for some other offense, the defendant was found not guilty, or charges against the defendant were dismissed.

The national figures show that prosecutors who charge an individual with illegal re-entry are currently willing about half the time to accept a plea of guilty to simple illegal entry. However, an individual charged with illegal re-entry doesn't have a 50-50 chance of being able to plead down to illegal entry. Rather, this figure reflects an average across offices with quite different policies, so the actual odds for any individual depend on where he or she is apprehended. Some offices rarely accept such a plea bargain, while in others this is the rule rather than the exception.

In fact, as shown in Table 3, plea bargains of this type are rare in all but two federal judicial districts: Arizona and the Southern District of California. In the remaining districts along the southwest border — New Mexico, the Western District of Texas, and Texas's Southern District — virtually everyone charged with illegal re-entry is also convicted of that offense. Similarly, in districts outside the southwest border, 99 percent of those charged with illegal re-entry are convicted of that charge.


Figure 3. Outcomes for Original Charge of Illegal Re-entry
by District (October 2012 - March 2014)*

(*Excludes some cases where the conviction was for some other offense, the defendant
was found not guilty, or charges against the defendant were dismissed.)

Yet in Arizona, nine out of every ten (89%) individuals charged with illegal re-entry during the last 18 months were allowed to plea down to the petty misdemeanor of simple illegal entry. In the Southern District of California during the same period, such plea bargains were accepted 19 percent of the time.

Practices in Arizona and Southern California have not always been this way. Looking at the Arizona figures over time, for example, there has been a sharp rise in the number of individuals charged with illegal re-entry along with the acceptance of these plea bargains. In the end, this has resulted in very little change in the number of individuals actually convicted of illegal re-entry. See Figure 4 (for details, see Appendix Table 4).


Figure 4. Outcomes for Original Charge of Illegal Re-entry in Arizona
over Time (March 2004 - March 2014)

In addition to differences among districts and over time, there are significant variations in charging and plea bargaining practices among offices within the same district. These contrasting practices often reflect how different prosecutors along the southwest border have implemented the Department of Homeland Security's Project Streamline to criminally prosecute those apprehended illegally entering this country.

The next report in this series will examine in greater detail the charging and plea bargaining practices both within and between adjacent districts along the southwest border, as well as what impact these practices appear to have on conviction rates.

Appendix

Month Charged Illegal Re-entry and Convicted of:
Illegal Re-entry Illegal Entry
Number Percent Number Percent
Mar 2004 83 100% 0 0%
Apr 2004 78 100% 0 0%
May 2004 134 100% 0 0%
Jun 2004 168 100% 0 0%
Jul 2004 180 100% 0 0%
Aug 2004 171 100% 0 0%
Sep 2004 168 100% 0 0%
Oct 2004 174 100% 0 0%
Nov 2004 112 100% 0 0%
Dec 2004 91 100% 0 0%
Jan 2005 79 100% 0 0%
Feb 2005 77 100% 0 0%
Mar 2005 83 100% 0 0%
Apr 2005 76 100% 0 0%
May 2005 96 99% 1 1%
Jun 2005 77 99% 1 1%
Jul 2005 83 99% 1 1%
Aug 2005 104 71% 42 29%
Sep 2005 103 50% 104 50%
Oct 2005 93 37% 160 63%
Nov 2005 65 26% 186 74%
Dec 2005 70 27% 192 73%
Jan 2006 95 30% 217 70%
Feb 2006 96 32% 202 68%
Mar 2006 104 38% 168 62%
Apr 2006 115 42% 156 58%
May 2006 129 44% 166 56%
Jun 2006 141 39% 217 61%
Jul 2006 144 38% 239 62%
Aug 2006 153 36% 274 64%
Sep 2006 160 34% 306 66%
Oct 2006 154 35% 291 65%
Nov 2006 172 38% 278 62%
Dec 2006 165 39% 262 61%
Jan 2007 135 36% 239 64%
Feb 2007 113 36% 199 64%
Mar 2007 112 38% 181 62%
Apr 2007 108 33% 225 67%
May 2007 81 25% 243 75%
Jun 2007 86 26% 241 74%
Jul 2007 112 33% 232 67%
Aug 2007 124 35% 232 65%
Sep 2007 128 36% 224 64%
Oct 2007 126 39% 198 61%
Nov 2007 136 38% 227 62%
Dec 2007 152 37% 255 63%
Jan 2008 150 34% 290 66%
Feb 2008 166 34% 321 66%
Mar 2008 185 35% 343 65%
Apr 2008 205 37% 354 63%
May 2008 229 41% 327 59%
Jun 2008 239 44% 301 56%
Jul 2008 238 43% 310 57%
Aug 2008 217 42% 303 58%
Sep 2008 201 39% 315 61%
Oct 2008 215 40% 329 60%
Nov 2008 212 38% 343 62%
Dec 2008 227 39% 363 61%
Jan 2009 240 40% 357 60%
Feb 2009 256 41% 366 59%
Mar 2009 266 43% 352 57%
Apr 2009 267 44% 334 56%
May 2009 250 41% 366 59%
Jun 2009 213 34% 415 66%
Jul 2009 189 30% 449 70%
Aug 2009 182 28% 474 72%
Sep 2009 182 25% 538 75%
Oct 2009 179 23% 600 77%
Nov 2009 196 25% 601 75%
Dec 2009 216 27% 588 73%
Jan 2010 234 25% 693 75%
Feb 2010 233 24% 741 76%
Mar 2010 263 25% 777 75%
Apr 2010 260 25% 792 75%
May 2010 254 23% 840 77%
Jun 2010 233 21% 876 79%
Jul 2010 237 22% 841 78%
Aug 2010 248 22% 863 78%
Sep 2010 222 21% 839 79%
Oct 2010 235 22% 841 78%
Nov 2010 251 23% 842 77%
Dec 2010 270 24% 834 76%
Jan 2011 296 27% 782 73%
Feb 2011 284 28% 733 72%
Mar 2011 325 30% 761 70%
Apr 2011 334 30% 764 70%
May 2011 374 33% 759 67%
Jun 2011 369 31% 838 69%
Jul 2011 420 32% 896 68%
Aug 2011 457 32% 961 68%
Sep 2011 399 30% 909 70%
Oct 2011 382 29% 947 71%
Nov 2011 319 24% 985 76%
Dec 2011 348 28% 913 72%
Jan 2012 357 27% 975 73%
Feb 2012 356 26% 995 74%
Mar 2012 407 28% 1,058 72%
Apr 2012 404 26% 1,132 74%
May 2012 422 26% 1,194 74%
Jun 2012 415 25% 1,274 75%
Jul 2012 356 22% 1,262 78%
Aug 2012 342 22% 1,227 78%
Sep 2012 311 20% 1,240 80%
Oct 2012 311 21% 1,185 79%
Nov 2012 294 21% 1,125 79%
Dec 2012 268 19% 1,107 81%
Jan 2013 229 17% 1,116 83%
Feb 2013 195 15% 1,148 85%
Mar 2013 166 13% 1,153 87%
Apr 2013 143 11% 1,206 89%
May 2013 129 10% 1,176 90%
Jun 2013 104 8% 1,225 92%
Jul 2013 99 7% 1,225 93%
Aug 2013 107 8% 1,251 92%
Sep 2013 112 8% 1,288 92%
Oct 2013 154 11% 1,305 89%
Nov 2013 183 12% 1,387 88%
Dec 2013 204 13% 1,391 87%
Jan 2014 225 14% 1,413 86%
Feb 2014 218 13% 1,429 87%
Mar 2014 224 14% 1,436 86%
*To smooth out month-to-month fluctuations, the numbers reported are six-month moving averages based on the dates when the dispositions for these cases were recorded. This table also only examines cases where a conviction for either illegal entry or re-entry was obtained, and excludes a small number of cases where the defendant was found not guilty, the charges were dismissed, or the defendant was found guilty of a different crime.