The latest available data from the Justice Department show a marked decline in federal criminal immigration prosecutions. As of March 2012, prosecutions resulting from referrals by Immigration and Customs Enforcement (ICE) were down 12 percent compared with last year's figures, while criminal prosecutions resulting from investigations by Customs and Border Protection (CBP) fell 6 percent.

Comparisons of the number of defendants charged with immigration 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.

ICE Criminal Prosecutions Down

Until February 2011, ICE criminal prosecutions had been climbing, reaching a peak of 21,686 on an annual basis (see Figure 1). Since then, using a 12-month moving average, numbers can be seen to have been falling. For the 12 months ending in March 2012, there were only 19,149 new criminal prosecutions – some 12 percent fewer.

This fall-off in ICE criminal prosecutions was unexpected.  There does not appear to have been any corresponding decrease in ICE deportation activity; indeed, agency announcements continue to promise that deportations should reach around 400,000 during FY 2012. And the agency's estimate is consistent with new case-by-case ICE deportation data just released to TRAC which indicate that there has been no let-up in the monthly volume of ICE deportations which totaled 34,630 during the month of April 2012

Figure 1. Federal Criminal Prosecutions from Immigration and Customs Enforcement (ICE) Investigations

ICE prosecution numbers display considerable month-to-month seasonal variation which is smoothed in Figure 1 by use of a 12-month running total. This means that the height of the bar for a given month represents the total number of prosecutions for the 12-month period ending that month, allowing a much clearer picture of long term trends. The month-by-month prosecution figures along with the accompanying 12-month running totals are provided in Table 2 which appears at the end of this report.

Using these 12-month running totals, Figure 1 reveals that there was a fairly steady rise in the number of criminal prosecutions until March 2009, at which point prosecution levels plateaued until they started climbing again in March 2010. Prosecutions then peaked in the 12-month period ending in February 2011. After that point in time, prosecutions began to fall, with the decline accelerating during the past five months.

CBP Apprehensions and the Odds of Criminal Prosecutions

A similar graph in Figure 2 displays the parallel 12-month running totals for CBP prosecutions (detailed month-by-month prosecution figures can be found in Table 2 at the end of this report).

CBP prosecutions display a sharp rise beginning in February 2008. One year later in February 2009 CBP criminal prosecutions reached a peak of 80,147 over a 12-month period. However, over the past three years (with some month-to-month variation) there has been a steady decline in criminal prosecutions resulting from referrals from the Border Patrol and other CBP officers catching violators at ports of entry. For the 12-month period ending in March 2012, CBP prosecutions had fallen to 65,440 — 18 percent below their peak.

These declines are a natural outgrowth of the declines in apprehensions along the southwest border. See the earlier June 2011 TRAC study for documentation of these trends.

Figure 2. Federal Criminal Prosecutions from Customs and Border Protection (CBP) Investigations

Border Patrol apprehensions along the southwest border have, however, been falling at a much faster rate than the declines in criminal prosecutions. This means that for an individual caught illegally entering the country, the odds of criminal prosecution have actually moved sharply up, not down. During FY 2011, around 20 percent of apprehensions resulted in a CBP-referred criminal prosecution — up from 16 percent in FY 2010 and only 2 percent as recently as FY 2006. See Table 1 and Figure 3.

Table 1. Likelihood of CBP Criminal
Prosecution if Apprehended

Fiscal Year	Border Patrol Apprehensions*	CBP Criminal Prosecutions**	Ratio
2006	1,089,136	26,116	2%
2007	876,787	29,593	3%
2008	723,840	67,204	9%
2009	556,032	77,669	14%
2010	463,382	72,572	16%
2011	340,242	69,080	20%

* based on latest Dept. of Homeland Security data
** based on latest Dept. of Justice data

Figure 3. Likelihood of CBP Criminal
Prosecution if Apprehended

Criminal prosecution, of course, is not the only sanction that awaits individuals apprehended illegally crossing the border. Prosecution numbers are dwarfed by the volume of CBP deportations. Indeed, for many years, deportations by CBP have far outpaced the more widely reported ICE annual deportation numbers.