Criminal Immigration Prosecutions Are Down,
But Trends Differ by Offense

Number Year-to-date 20,943
Number FY 2010 (estimated) 83,772
Percent Change from previous year 8.8
Percent Change from 2 years ago 5.5
Percent Change from 5 years ago 123
Percent Change from 10 years ago 401
Percent Change from 20 years ago 708

Table 1: Criminal Immigration Prosecutions

The rate of criminal immigration prosecutions the government reported during the first three months of FY 2010 is down by 8.8 percent compared to quarterly figures for last year. If the prosecution pace continues at this rate for the rest of FY 2010, the number of criminal prosecutions will reach only 83,722 as compared with 91,899 during FY 2009.

Last year, immigration prosecutions were at an all time high. When the current rate is compared with two years ago, the current pace is still 5.5 percent higher than it was during FY 2008 when there were only 79,431. Compared to five years ago when there were 37,614, the number of FY 2010 prosecutions are projected to be up 123 percent. These comparisons of the number of defendants charged with immigration-related 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 (see Table 1).

The long term trend in immigration prosecutions for these matters going back to FY 1989 is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of criminal immigration prosecutions recorded each fiscal year. Each presidential administration is distinguished by the color of the bars. To view trends month-by-month rather than year-by-year, see TRAC's monthly report series for the latest data.

VBAR chart of shortyear
Figure 1: Criminal Immigration Prosecutions over the last 20 years

While there may be a decrease in total criminal immigration prosecutions, markedly different trends emerge upon examining the data by investigative agency, lead charge and federal district. The remaining sections of this report explore these different trends.

Trends by Investigative Agency

The Department of Homeland Security was the lead investigative agency in virtually all (99 percent) immigration prosecutions. More than four out of every five (82 percent) of immigration prosecutions had been investigated by DHS's Customs and Border Protection (CBP). CBP includes the Border Patrol along with the agents who inspect individuals and freight at all ports-of-entry.

In 15 percent of the immigration prosecutions, the lead investigative agency was DHS's Immigration and Customs Enforcement (ICE). That agency houses both a large contingent of general inspectors and of criminal investigators. DHS's Citizenship and Immigration Services accounts for only 2 percent. The remaining 1 percent is contributed from other federal, state and local investigative agencies.

Figure 2. Criminal Immigration Prosecutions.

Examining prosecutions referred by CBP and by ICE, trends were quite different for these two lead investigative agencies. As shown in Figure 2, all of the decline in immigration prosecutions during the past three months was from the drop off in referrals from Customs and Border Protection. In fact, CBP referrals were down by 11 percent, while ICE prosecutions were up slightly (1 percent).

Differential Trends by Lead Charge

Trends differed sharply also by lead charge. There was actually a 16 percent increase in prosecutions for illegal reentry (8 USC 1326) during the first three months of FY 2010. During this period, 8,708 individuals were criminally prosecuted for illegal reentry. If the pace continues for the remainder of FY 2010, an estimated 34,832 will be prosecuted for this offense, as compared with 30,030 last year.

Figure 3. Prosecutions of 8 USC 1326 - Illegal Reentry.

As shown in Figure 3, illegal reentry criminal prosecutions referred by CBP lead the way with a 21 percent jump between the first three months of FY 2010 compared with a typical quarter during FY 2009. Prosecutions for illegal reentry referred by ICE also grew significantly in FY 2010, but by a lesser (9 percent) rate.

What drove the overall decline was the sharp 24 percent drop off in criminal prosecutions for illegal entry (8 USC 1325). Illegal entry is a generally a petty offense where those convicted rarely receive any real prison time - indeed, the median time defendants were given during the first quarter of FY 2010 was zero months. That is, more than half received no prison time. In contrast, illegal reentry is a felony where prison time is usually assigned. The median prison sentence (half got more, half got less) during the first three months of FY 2010 was 6 months for illegal reentry.

During the first quarter of FY 2010, 9,982 individuals were criminally prosecuted for illegal entry. If the pace continues for the remainder of FY 2010, an estimated 39,928 will be prosecuted for this offense, as compared with 52,718 last year.

Figure 4. Prosecutions of 8 USC 1325 - Illegal Entry.

Almost all (98 percent) of illegal entry prosecutions are referred by Customs and Border Protection (see Figure 4). Because illegal entry historically made up the vast majority of CBP's prosecutions, this drop off in illegal entry prosecutions during the first quarter of FY 2010 is what drove CBP's numbers down. In FY 2009, illegal entry was the lead charge in over three quarters (78 percent) of CBP's criminal prosecutions. This fraction slid to only 58 percent during the first three months of FY 2010.

In contrast, the proportion of immigration prosecutions by CBP that were for illegal reentry grew slightly, from 30 percent in FY 2009 to 35 percent in the first three months of FY 2010.

Changing Patterns in Federal Districts

During the first three months of FY 2010, nine out of ten immigration prosecutions (90 percent) took place in the five federal districts along the southwest border of the United States — Arizona, California South, New Mexico, Texas South and Texas West. This was about the same proportion as in FY 2009. Each of these five federal districts showed declines in prosecutions for illegal entry (8 USC 1325), and significant increases in the prosecutions for illegal reentry (8 USC 1326).

In Arizona, for example, criminal prosecutions for illegal entry dropped by 4 percent, while illegal reentry prosecutions grew by 31 percent. Other federal districts along the southwest border showed larger rates of decline in prosecutions for illegal entry: California South (San Diego) down 40 percent, New Mexico down 36 percent, Texas South (Houston) down 27 percent and Texas West (San Antonio) down 38 percent.

And similar to Arizona, the remaining border districts also showed increases in the pace of criminal prosecutions for illegal reentry, although that increase varied significantly by district. Next to Arizona where the increase was 31 percent, California South (San Diego) showed the next largest increase in the pace of illegal reentry prosecutions of 28 percent. New Mexico with a 7 percent increase, Texas South (Houston) with a 10 percent increase, and Texas West (San Antonio) with a 14 percent increase all increased the pace of illegal reentry prosecutions but by lesser degrees.

In the rest of the country there are relatively few prosecutions for illegal entry to begin with; the typical charge is for illegal reentry. Outside the southwest border districts, there was virtually no change (less than 1 percent difference) recorded in the number of prosecutions for illegal reentry.

Report Date: March 17, 2010
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