Published Jul 7, 2022
The number of criminal referrals sent by the Border Patrol and other Customs and Border Protection (CBP) officers have recently begun to rise. Detailed case-by-case government records obtained by TRAC after successful litigation show that during April 2022, CBP referred 2,015 individuals for criminal prosecution to federal prosecutors. This is the first time referrals topped the 2,000 mark since the pandemic began slightly more than two years ago. Levels in April 2022 were up 31 percent from one year earlier when in April 2021 there were a total of 1,537 criminal referrals from CBP.
Most of this increase has been for prosecution for unlawful reentry. Prosecutions for unlawful entry, which historically were much more common but rarely resulted in any significant jail time, have not shown significant recovery. Similarly, criminal referrals from Immigration and Customs Enforcement (ICE), have shown no real change. See Figure 1.
Two years ago, with the onset of the pandemic and the partial government shutdown, criminal referrals as well as prosecutions plummeted across all major federal law enforcement agencies. While criminal enforcement activities of the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) recovered some time ago, criminal enforcement of immigration laws generally have not bounced back.
There are policy reasons that help account for immigration being a special case. In March 2020 the Trump administration invoked special border control procedures allegedly tied to public health concerns associated with the pandemic. Most individuals without valid authorization were not allowed to enter the country and were immediately expelled under Section 265 of Title 42 of the United States Code. According to case-by-case records obtained by TRAC under the Freedom of Information Act (FOIA) from CBP, Border Patrol referrals for criminal prosecution immediately plummeted. Border Patrol referrals in February 2020 had reached almost 10,000, but dropped precipitously to just 295 in April 2020. 
While President Biden announced that he planned to end Title 42 expulsions on May 23, 2022, a federal court has blocked its termination. If and when the Biden administration is permitted to end Title 42, it remains an open question of what will happen next. One significant question is whether criminal prosecutions for border violations will bounce back to anywhere near the pre-pandemic levels that prevailed under the prior Trump administration.
While most CBP criminal referrals originate from the five federal judicial districts along the southwest border with Mexico, trends differ among these five. Arizona shows both the largest number of criminal referrals in April 2022 (636), as well as the largest increase from a year earlier (up 89%). The Western District of Texas is close behind with 592 criminal referrals representing the next largest increase of 72 percent. New Mexico, while making fewer referrals (171), also shows a substantial increase (63%).
Neither the Southern District of Texas nor the Southern District of California have any observable upward trend. Southern Texas in fact received fewer criminal referrals from CBP in April than it had in March, and fewer still than it had received a year earlier. See Figure 2 and Table 1.
|Month and Year||US Total||Federal Judicial District|
|Arizona||S Ca||N Mex||Tex South||Tex W|
For decades, federal criminal prosecutions for immigration violations made up the majority of all offenses that federal prosecutors pursued. At the beginning of the Clinton administration, one in ten criminal prosecutions recorded by assistant U.S. attorneys were immigration-related according to case-by-case Justice Department records TRAC obtained after successful litigation. DOJ records started tracking prosecutions by the type of offense in FY 1986. 
This percentage began climbing during the Clinton administration, and continued rising during President George W. Bush’s administration. During FY 2008, the last full year of the Bush administration, immigration-related criminal prosecutions topped 50 percent of all federal offenses for the first time.
The dominance of immigration prosecutions continued throughout the Obama administration and peaked in FY 2019 under President Trump when almost two out of every three criminal prosecutions (64%) were classified by federal prosecutors as immigration-related.
During FY 2021, this immigration percentage dropped to roughly just one in four (27%). Thus far during the first seven months of FY 2022, immigration-related prosecutions have risen to 32 percent of all offenses prosecuted. Only time will tell how prosecution levels may change If and when Title 42 expulsions end.