(1) While not strictly an enforcement matter, the government maintains
a vast regulatory system that touches the lives of millions of people each
year as a result of its power to issue visas, naturalize citizens, grant
(2) Agencies like the Border Patrol, now located within the Department
of Homeland Security's Bureau of Customs and Border Protection, have for many decades been authorized to
intercept the flow of "undocumented" persons as they slip across the
border. Under the administrative authority granted by law, hundreds of
thousands of these persons are each year persuaded to return to their
place of origin without ever being charged with any kind violation and without
the benefit of any kind of hearing. At the same time the old Customs Bureau, once a major source of federal revenue, has been moved to the Bureau of Customs and Border Protection, again within the DHS, to join with former INS immigration inspectors to manage much of the flow of persons and goods entering and leaving the United States.
(3) The agencies have long had a second option: to initiate formal
proceedings, mostly aimed at removing individuals from the United
States. The adjudication of these proceedings is the responsibility of
215 special judges sitting in 53 courts. In a recent year, they decided
more than 200,000 cases. About
one third of the decisions involve aliens who are detained. The judges
are not in the judicial branch. Rather, they are employees of the
Executive Office for Immigration Review, a branch of the Justice
Department. The traditional rules of evidence guiding judges in federal
district courts are not applicable. This means immigration judges have
greater authority to receive evidence in deciding cases.
(4) Finally, however, the agencies also are authorized to recommend
that criminal charges be brought against selected individuals. These
charges are generally prosecuted by assistant U.S. attorneys and
decided by judges and magistrates in the federal district courts. The
judges and magistrates, unlike the administrative judges in the Justice
Department, are a part of the judicial branch.
This report focuses only the last, the prosecution in federal court of individuals charged with criminal violations of the immigration laws. For many years, the criminal cases were mostly the result of the investigations by the Immigration and Naturalization Service (INS), an agency within the Justice Department. With the creation of the DHS immediately after 9/11, however, the criminal enforcement effort has split between the department's Bureau of Customs and Border Protection and its Bureau of Immigration and Customs Enforcement. It is from the Border Patrol that the Justice Department's enforcement data show that most of the rapid growth in criminal enforcement has occurred.