The number of prosecutions related to unlawful entry remains at unprecedentedly low levels. In fact, the number of migrants prosecuted for unlawful entry as a lead charge in FY 2021 (October 2020-September 2021) totaled just 267—far lower than any year going back to 1986 when comparable tracking began. The number of prosecutions each month for unlawful reentry bounced back slightly after the start of the pandemic but have also remained at consistently low levels. Harboring prosecutions returned fairly quickly to numbers seen prior to the pandemic.

The data show few differences between the Trump and Biden administrations in terms of the number of these prosecutions. Notably, variations in the number of these prosecutions were driven entirely by variations in referrals the U.S. Justice Department (DOJ) received from Customs and Border Protection (CBP). Based upon internal referral-by-referral DOJ records obtained and analyzed by TRAC after successful litigation under the Freedom of Information Act (FOIA), federal prosecutors have prosecuted almost every criminal referral (>98%) received from CBP during both the Trump and Biden administration. CBP criminal referrals cover not only unlawful entry, unlawful reentry, and harboring cases, but other alleged offenses including drug-related lead charges.

Prosecutions are largely driven by U.S. border policy. In order for migrants to be prosecuted in federal court, they typically must be referred to federal prosecutors by Customs and Border Protection. U.S. border policy has chosen to not criminally prosecute illegal border crossers before deporting them. One consequence of the way Title 42 has been implemented is thus that far fewer migrants have been referred for prosecution. Title 42 in combination with the Migrant Protection Protocols (MPP), a program for sending asylum seekers back to Mexico, has led to repeated attempts at border crossings. This appears to have driven up the number of encounters by border patrol. Many have observed that the dramatic decline of prosecutions in federal court for unlawful entry and unlawful reentry has resulted in fewer legal consequences and therefore fewer disincentives for attempting to repeatedly cross into the United States unlawfully.

To read the full report, go to:

https://trac.syr.edu/tracreports/crim/665/

In addition to these most recent figures, TRAC continues to offer free monthly reports on selected government agencies such as the FBI, ATF, DHS and the IRS. TRAC's reports also monitor program categories such as immigration, drugs, weapons, and terrorism. Even more detailed criminal enforcement information for the period from FY 1986 through September 2021 is available to TRACFed subscribers via Express and Going Deeper tools. Go to https://tracfed.syr.edu for more information.

Customized reports for a specific agency, district, program, lead charge or judge are available via the TRAC Data Interpreter, either as part of a TRACFed subscription or on a per-report basis. Go to

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