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Immigration Prosecutions Increase With New Push for Border Enforcement

Published Jun 25, 2024

Criminal prosecution of immigration crimes has grown since the start of the Biden administration. Figures for the latest available three months covering February-April 2024 show a pronounced jump up 21 percent over the comparable period a year ago.[1] While case-by-case records reflect month-to-month fluctuations, the overall rise from three years ago after Biden assumed office show prosecution levels are now up by 65 percent. These increases may continue given the Department of Justice’s announcement in May 2024 to step up efforts to prosecute human trafficking and immigration-related crimes along the U.S.-Mexico border.[2] See Figure 1.[3]

Figure 1. Immigration Related Prosecutions in Federal Court During Biden Administration

However, the policy of immediately expelling immigrants under Title 42 which started under the Trump administration and had continued under Biden until their lifting in May of last year had brought immigration prosecution levels to historic lows.[4] As shown in Figure 1, prosecutions for illegal entry (8 USC 1325, a misdemeanor) had virtually disappeared.[5]

At one time, illegal entry was the most frequently prosecuted immigration offense. Indeed, a high of over 12,000 monthly unlawful entry prosecutions occurred during the Trump-era “Zero Tolerance Policy” (see TRAC’s previous report here). Not surprisingly these misdemeanor filings now after the end of Title 42 have posted the largest relative gains.

Increases have also occurred for criminal prosecution of illegal reentry (8 USC 1326, a felony) – up 57 percent between the first and latest three month period of the Biden presidency. These offenses have consistently made up the largest share, and now account for about two-thirds of all immigration criminal prosecutions.

As shown in Figure 1, harboring prosecutions (8 USC 1324) ramped up at the beginning of 2021 but have remained on average relatively steady more recently (consistent with longer historical patterns), typically between 300 and 600 per month. 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.[6]

Most immigration prosecutions occur in the five federal districts along the U.S.-Mexico border and each of these individual districts show somewhat different trends. Figure 2 shows the number of unlawful entry prosecutions by federal judicial district. The Western District of Texas drove the largest portion of the recent jump in these misdemeanor filings, followed by Arizona. The other three districts—the Southern District of Texas, the District of New Mexico, and the Southern District of California—have remained relatively low.

However, during the June–October 2023 period, the largest number of unlawful entry prosecutions weren’t in any of the districts bordering Mexico. Instead, the jump occurred elsewhere. These prosecutions were concentrated in the Northern District of New York (Syracuse) along the border with Canada. For all of FY 2023, the Northern District of New York ranked in fifth place out of the 94 federal judicial districts in the number of illegal entry prosecutions surpassing the number in the Southern District of Texas. Other districts along the northern border including Maine, the Western District of New York, Montana, and North Dakota also ranked among the top ten in the per capita number of illegal entry prosecutions.

New prosecutions for unlawful reentry reached their highest levels in April 2024. See Figure 3. Arizona and the Western District of Texas were again the most active among the federal judicial districts along the U.S.-Mexico border. No northern border district made the top ten. Wyoming and the Western District of Oklahoma ranked in sixth and in seventh place in the per capita number of illegal reentry prosecutions.

Figure 2. Unlawful Entry (§1325) Prosecutions by Federal District Court

Figure 3. Unlawful Reentry (§1326) Prosecutions in Federal Court

Footnotes

^[1]^ The calculation of percentage increases are based on three-month moving averages to smooth out month-to-month natural fluctuations. Thus, one-year changes are based on a comparison of the February-April 2024 period with the February-April 2023 period, and the three-year change is compared with the February-April 2021 period during the first three full months of the Biden presidency.

^[2]^ See the Department of Justice’s announcement on May 31, 2024, here: Justice Department Expands Efforts to Dismantle Human Smuggling Operations and Support Immigration Prosecutions.

^[3]^ These numbers were compiled by the Transactional Records Access Clearinghouse (TRAC) based on case-by-case federal records obtained from the Department of Justice after lengthy litigation under the Freedom of Information Act (FOIA). TRAC makes the underlying data for this report available through subscriptions to its TRACFed information services. Click here to get started or email trac@syr.edu for more information about how you can get access to the same data used by leading news outlets like the Associated Press, The New York Times, The Washington Post, The Wall Street Journal and scholarly researchers from leading universities around the country. The latest data on immigration-related prosecutions is also available at TRAC’s Quick Facts tool online here.

^[4]^ Title 42 which was authorized at the start of the COVID-19 pandemic during the Trump administration, allowed border officials to turn migrants immediately away at the border allegedly for public health reasons (under Title 42 of the U.S. Code) rather than for immigration reasons (under Title 8 of the U.S. Code). As a result, migrants who would normally have been prosecuted in federal criminal court for immigration violations were turned away earlier in the process, cutting off the flow of migrants into the prosecution pipeline and, therefore, driving down immigration prosecutions overall.

^[5]^ 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 another unlawful entry along the southwest border after already having a deportation on their record.

^[6]^ For example, the U.S. Attorney’s Office in the Northern District of New York recently reported that on September 28, 2022, an individual after making arrangements to be paid drove his pickup truck to the riverbank on the U.S. side of the Canadian border and picked up six undocumented individuals and drove them to Hogansburg and Bombay New York. After an investigation by the U.S. Border Patrol, he was apprehended and recently pled guilty to transporting undocumented immigrants.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.