Major Swings in Immigration Criminal Prosecutions during Trump Administration

Immigration enforcement policies enacted by the Trump administration along the U.S.-Mexico border has contributed to notable fluctuations in the number of immigration-related prosecutions in federal courts since January 2017.

Detailed case-by-case government records obtained by TRAC after successful litigation show that in early 2018, the number of federal prosecutions for all immigration-related charges climbed sharply and crested 12,000 for the first time in May after the Department of Justice's "zero-tolerance" policy went into effect. The zero-tolerance policy directed prosecutors to charge immigrants who allegedly entered the country unlawfully with a federal crime[1]. Then, in early 2020, the COVID-19 pandemic[2] led to a sudden across-the-board decline in federal prosecutions of all types, not just immigration. But as non-immigration prosecutions rebounded, immigration-related prosecutions remain uncharacteristically low due in large part to Customs and Border Protection's policy to quickly expel immigrants back to Mexico rather than detain and prosecute them. See Figure 1.

In this report, TRAC takes a closer look at these data to understand how the Trump administration's immigration enforcement policies have shaped trends in immigration-related prosecutions in federal courts along the US-Mexico border over the past nearly four years. We focus specifically on the three most common charges-unlawful entry, unlawful reentry, and harboring-to understand how immigration enforcement policies affect the workload of prosecutors and judges in federal courts along the border.

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Prosecuting Unlawful Entry, Unlawful Reentry, and Harboring Along the U.S.-Mexico Border

Criminal prosecutions in federal courts are separate from civil immigration proceedings in immigration courts, although both can result in serious consequences[3]. Federal prosecutors who work in U.S. Attorneys' offices across the country typically receive referrals sent to them by numerous law enforcement agencies. Once they receive a case, prosecutors decide whether to prosecute or not. If they decide to prosecute, some prosecutions can take place very quickly as in illegal entry, or prosecutions may be delayed to allow further investigation of the evidence or for other reasons. Most defendants ultimately enter a guilty plea, but as a result of the COVID-19 pandemic, cases that involve jury trials may be delayed for public health reasons.

Although several types of federal immigration charges exist, we focus on the three that are by far the most common: unlawful entry (8 USC 1325), unlawful reentry (8 USC 1326), and harboring (8 USC 1324). Although there are several ways to enter the United States unlawfully, unlawful entry most often applies to immigrants who enter by crossing the US-Mexico border illegally. Similarly, unlawful reentry most commonly applies to immigrants who make an unlawful entry along the southwest border after already having a deportation on their record. Harboring has been used broadly to prosecute not only people who provide physical shelter to immigrants, but also people who provide other forms of aid or assist in evading law enforcement. But even here TRAC previously showed that the majority of harboring cases are filed in federal court districts along the US-Mexico border.

Federal Immigration Prosecutions Peak After Zero Tolerance Implemented

After relatively similar numbers of prosecutions for unlawful entry and unlawful reentry in Trump's first year, the two began to diverge in early 2018 at the same time that Attorney General Jeff Sessions instructed U.S. Attorneys Offices to prosecute immigrants in federal court under what Sessions called a "zero-tolerance" policy. Most prosecutions were of adults traveling alone. However, the policy of prosecuting adults who crossed the border with children with a federal crime typically forced the parents and child/children to be detained in separate facilities. The evidence suggests that children were also separated from their parents even when parents weren't being prosecuted.

As TRAC previously discovered in the summer of 2018, Sessions' directive did not result in anything close to "zero tolerance" in practice. In April 2018 CBP referred less than one in four adults apprehended at the border for prosecution. By May of 2018, that percentage rose to one out of every three, and rose further to just under half in June of 2018. However, the vast majority of adults CBP apprehended did not come with children. The trend in lower-than-promised prosecution rates continued into 2019, when TRAC found that prosecutions of adults traveling alone had fallen by February 2019 to 38 percent of CBP southwest border apprehensions.

Even though the Administration did not achieve its "zero-tolerance" objective, it did coincide with high numbers of federal prosecutions for unlawful entry. After remaining well under 4,000 total unlawful entry prosecution each month for many months, the federal courts saw these cases shoot up to a height of 8,780 in June 2018 and remain over 6,000 per month until February 2019 when the number began to decline until it reached just under 4,000 again in September 2019.

Prosecution for unlawful reentry increased somewhat in spring of 2018, but remained relatively unremarkable until they began to increase in early 2019 and reached just over 4,000 in June 2019 and January 2020[4]. Harboring prosecutions, which typically remained between 300 and 500 each month but climbed to over 500 during the Trump administration, appeared relatively unaffected by zero-tolerance policies. See Figure 2 below and Appendix Table 1 at the end of this report.

Federal Immigration Prosecutions Remain Low During COVID-19 Pandemic as Other Prosecutions Rebound

The COVID-19 pandemic impacted virtually all aspects of society including the everyday operations of the federal government including immigration-related prosecutions.

TRAC previously found that in the wake of COVID-19, new criminal prosecutions in federal courts plummeted 80 percent, from 13,843 across the country in the month of February to just 2,824 in April. The decline affected all of the key federal enforcement agencies that refer cases for prosecution and all law enforcement program areas, from immigration enforcement to narcotics/drug enforcement.

By June, however, federal criminal prosecutions already began to recover, and by August 2020, TRAC found that prosecutions had rebounded for all enforcement areas except for immigration enforcement. ICE referrals were beginning to recover, while CBP referrals which typically made up the lion's share of immigration prosecutions remained down. The uncharacteristically low numbers of immigration prosecutions is significant because immigration cases normally make up the majority of criminal cases on federal court dockets. Through March of this year, about six out of every ten federal criminal prosecutions were immigration-related.

The reason that immigration prosecutions have remained low is not attributable to the direct consequences of the pandemic or lower numbers of immigrants crossing the southwest border. In fact, the Border Patrol reports 67,639 apprehensions in October 2020, the highest since July 2019. Rather, the low numbers of prosecutions clearly are due to a policy decision.

Under a controversial policy in place since March 2020, Customs and Border Protection (CBP) has been expelling immigrants who enter the United States unlawfully rather than detaining and prosecuting them in federal court. The justification CBP gave for the policy was that individuals who crossed the border unlawfully "bypassed health screening measures" and therefore "potentially posed a health risk[5]." Because the authority for these expulsions relies on Title 42 of the law (and not the usual Title 8), CBP refers to these as 'Title 42 expulsions[6].'

TRAC previously discovered that the number of immigration cases referred by CBP to federal prosecutors on a day-to-day basis began to decline in mid-March and appeared to approach zero by the end of that month, consistent with reporting by ProPublica that the agency planned to expel immigrants who were entering the country unlawfully.

As a result of Title 42 expulsions, federal judges along the U.S.-Mexico border whose workloads are typically dominated by immigration cases have seen much of that work dry up in recent months. In October 2020, for instance, the entire federal court system recorded just 16 new cases for unlawful entry. In October 2019, that number was 3,453, and in October 2018 that number was 8,713. It appears, then, that the diversion of immigrants from detention and prosecution to expulsion is causing the number of unlawful entry prosecutions to completely bottom out since July.

Unlawful reentry prosecutions have increased somewhat to over 1,000 since August but still nowhere close to the 3,260 from October 2019. Harboring prosecutions seem to be the only one of the top three immigration charges that appears to have recovered, with 459 in October 2020- well within the 300-500 new cases that the federal courts see each month. See Figure 3.

Impact of Immigration Enforcement Policies Vary Among District Courts Along the U.S.-Mexico Border

Although immigration charges can occur in any federal district court, this section focuses on the five districts along the U.S.-Mexico border where the bulk of unlawful entry, unlawful reentry, and harboring charges are filed. This includes: (1) the Southern District of California, (2) the District of Arizona, (3) the District of New Mexico, (4) the Western District of Texas, and (5) the Southern District of Texas.

The following graphs for each of the five district courts along the border show that the national trends discussed above are not reflected in the same way in each court. Prosecutions in the Southern District of California and the Southern and Western Districts of Texas reveal patterns that are the most consistent with national trends, while the Districts of Arizona and New Mexico do not mirror these same patterns, particularly for illegal reentry prosecutions. This serves as a reminder that prosecutions along the southwest border can vary a great deal geographically because prosecutions are contingent upon various factors including the overall flows of migrants crossing the border at various points as well as changed enforcement priorities and practices.

Consequences of Title 42 Expulsions and Low Numbers of Unlawful Entry Prosecutions

CBP's policy for expelling immigrants under Title 42 can have both intended and unintended consequences. Immigrant rights advocates have argued that Title 42 expulsions intentionally circumvent the normal asylum process by affording immigrants few opportunities to undergo a full credible fear screening before being rushed out of the country. Thus, expulsions may run afoul of United States' legal obligations under national and international law.

Expulsions under Title 42 also result in immigrants being walked back to the Mexico side of the border without receiving a formal deportation order or federal charges. If the goal of prosecuting unlawful entry cases was to serve as a deterrent to unauthorized entry, then among potential unintended consequences is that CBP's Title 42 expulsions may actually be undermining this goal. Instead of deterring illegal entry, the lack of perceived consequences may encourage individuals to make repeat attempts to sneak across the border and encourage others to follow in their footsteps.

Appendix Table 1. Federal Immigration Prosecutions by Major Offense Category:
Unlawful Entry, Unlawful Reentry, and Harboring
(January 2017-October 2020)

Month	Unlawful Entry	Unlawful Reentry	Harboring	All Immigration Prosecutions
Jan-17	2,080	2,198	284	4,647
Feb-17	1,858	2,081	262	4,302
Mar-17	1,783	2,340	246	4,465
Apr-17	1,573	1,819	217	3,669
May-17	1,786	2,490	267	4,656
Jun-17	2,616	2,511	352	5,524
Jul-17	2,709	2,079	293	5,173
Aug-17	3,019	2,440	439	6,037
Sep-17	2,772	2,175	300	5,360
Oct-17	3,152	2,199	310	5,802
Nov-17	2,373	2,250	289	5,021
Dec-17	2,454	2,032	278	4,867
Jan-18	3,357	2,192	319	5,978
Feb-18	3,105	2,095	361	5,681
Mar-18	3,944	2,609	356	7,027
Apr-18	4,551	2,910	334	7,916
May-18	6,595	2,908	405	10,107
Jun-18	8,780	3,012	380	12,358
Jul-18	7,480	2,698	396	10,769
Aug-18	8,364	3,140	436	12,120
Sep-18	7,997	2,843	379	11,327
Oct-18	8,713	3,187	510	12,600
Nov-18	7,932	2,877	415	11,399
Dec-18	6,204	2,256	309	8,849
Jan-19	7,871	2,748	336	11,081
Feb-19	6,348	2,979	400	9,777
Mar-19	4,922	3,030	422	8,501
Apr-19	5,376	3,002	457	9,023
May-19	4,992	3,512	565	9,297
Jun-19	4,498	3,763	487	8,934
Jul-19	4,685	4,035	502	9,385
Aug-19	4,600	3,715	505	9,020
Sep-19	3,360	3,502	545	7,633
Oct-19	3,453	3,260	613	7,495
Nov-19	3,021	3,048	531	6,736
Dec-19	3,254	3,264	510	7,137
Jan-20	3,957	3,468	497	8,019
Feb-20	3,966	3,909	505	8,494
Mar-20	3,342	3,036	407	6,894
Apr-20	663	324	92	1,099
May-20	321	648	103	1,091
Jun-20	459	888	214	1,603
Jul-20	34	721	249	1,070
Aug-20	21	1,076	296	1,483
Sep-20	24	1,282	394	1,800
Oct-20	16	1,278	459	1,824

^[1] There was an earlier but smaller jump in immigration prosecutions in April 2017 when the new administration under then Attorney General Sessions directed federal prosecutors to make a "Renewed Commitment to Criminal Immigration Enforcement." The zero-tolerance policy for illegal entry was formally announced by Sessions on April 6, 2018 following earlier calls for stepped up immigration prosecutions along the southwest border by immigration officials. While an Executive Order was issued on June 20, 2018 to end family separation, it also called for continued criminal prosecution for illegal entry. In reality, despite a federal court decision by U.S. District Judge Dana M. Sabraw ordering reunification of separated children with their parents, evidence brought out in subsequent court filings as well as in a retrospective February 2020 GAO report found that family separations had actually continued. Recognizing that beginning and end dates for the zero tolerance and family separation policies are not clear cut, the shading on figures in this report uses the 12-month period March 2018 - February 2019 to highlight when the impact of these policies were at their height.

^[3] It is important to note that the federal courts and the immigration courts are two distinct systems. A thorough discussion of the differences and connections between federal immigration-related prosecution and the administrative immigration proceedings are beyond the scope of this report. This report focuses entirely on the federal courts. For more information about our immigration data, visit our explainer titled "Looking for Immigration Data? TRAC has a Tool for That."

^[4] As a later section in this report discusses, the national figures don't reflect any uniform practice but appear to reflect the sum total of differing policies adopted in districts along the southwest border. Charging national patterns for illegal reentry may thus be driven by strategies adopted by different district U.S. Attorneys. For example, historically Arizona had a standard practice of charging illegal reentry but accepting pleas dropping the charge to simply illegal entry. Other districts then rarely pled down an illegal reentry charge to illegal entry.

^[6] CBP claims that by using expulsion to divert immigrants from detention centers, the agency seeks to reduce the spread of COVID-19 inside its facilities according to CDC guidance. Yet health officials at the CDC say that the claims used to justify the policy were not sound and that the policy was issued over their objection. In November, a federal judge limited CBP's use of Title 42 expulsions for unaccompanied minors.