Federal Immigration Prosecutions at Record Lows
New data released by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show that the number of immigration-related criminal prosecutions in federal court remains remarkably low in FY 2021, partly as a result of the Title 42 policy that has turned back migrants at the border under both the Trump and Biden administrations.
The number of prosecutions related to unlawful entry remains at unprecedentedly low levels. In fact, the number of migrants prosecuted for unlawful entry as a lead charge in FY 2021 (October 2020-September 2021) totaled just 267—far lower than any year going back to 1986 when comparable tracking began.
The number of prosecutions each month for unlawful reentry bounced back slightly after the start of the pandemic but have also remained at consistently low levels. Harboring prosecutions returned fairly quickly to numbers seen prior to the pandemic.
The data show few differences between the Trump and Biden administrations in terms of the number of these prosecutions. Notably, variations in the number of these prosecutions were driven entirely by variations in referrals the U.S. Justice Department (DOJ) received from Customs and Border Protection (CBP). Federal prosecutors have the discretion to choose if and how to act on referrals made to their offices from law enforcement agencies. Often, changes in the numbers of many types of prosecutions can vary based on how prosecutors exercise their discretion.
However, based upon internal referral-by-referral DOJ records obtained and analyzed by TRAC after successful litigation under the Freedom of Information Act (FOIA), federal prosecutors have prosecuted almost every criminal referral (>98%) received from CBP during both the Trump and Biden administration. CBP criminal referrals cover not only unlawful entry, unlawful reentry, and harboring cases, but other alleged offenses including drug-related lead charges.
Figure 1 shows the number of each of these prosecutions each month since the start of the Trump administration, including the period of the zero-tolerance policy, which resulted in high numbers of prosecutions, as well as the period of the ongoing pandemic, which show low numbers of prosecutions. Figure 2 focuses just on the later January 2020 - September 2021 period so that greater detail can be seen during the partial government shutdown as a result of the pandemic and the transition between the Trump and Biden administrations. Table 1 at the end of this report provide these month-by-month prosecution figures.
Figure 1. Federal Prosecutions for Unlawful Entry, Unlawful Reentry, and Harboring
January 2017-September 2021
(Click for larger image)
Figure 2. Federal Prosecutions for Unlawful Entry, Unlawful Reentry, and Harboring
January 2020-September 2021
(Click for larger image)
Unlawful Entry Prosecutions
In September 2021, just 24 individuals were prosecuted in federal court for unlawful entry (8 USC 1325) as the lead charge. Since June 2020, the number of unlawful entry prosecutions each month has never been higher than 35, making last month consistent with more than a year of data. However, this is remarkably low compared to the 12 months prior to the start of the pandemic. In March 2020 the average number of these prosecutions per month exceeded 4000. Just three years ago, in September 2018, the number of unlawful entry prosecutions in a single month was about 8000.
Unlawful Reentry Prosecutions
The number of prosecutions where unlawful reentry (8 USC 1326) was the lead charge in September 2021 totaled 1,067, which was consistent with prosecutions since August 2020. When the pandemic started, the number of prosecutions of unlawful reentry dropped from slightly more than 3,000 in March 2020 to slightly more than 300 in April of that year. By August 2020, the number of unlawful reentry prosecutions climbed back up to 1,077, still lower than usual but a third of the number at the start of the pandemic. It has not budged since then. By comparison, the number of unlawful entry prosecutions in August 2020 only reached 21, which was less than a percent of what it had been at the start of the pandemic.
Harboring prosecutions (8 USC 1324) are the only lead charge out of the three that fully recovered after the start of the pandemic. The number of harboring prosecutions in March 2020 was 407, then dropped quickly to 92 in the following month. By September 2020, the number of harboring prosecutions reached 395 and continued to climb until April when it reached 559 prosecutions in a single month, well above the average of 510 prosecutions per month in the year prior to the start of the pandemic. The last quarter of FY 2021 saw a slight decline in the number of these prosecutions.
Low Prosecutions Are Influenced by Border Policies
The change in the number of federal prosecutions is often unrelated to the number of migrants coming across the border. Instead, prosecutions are largely driven by U.S. border policy. In order for migrants to be prosecuted in federal court, they typically must be referred to federal prosecutors by Customs and Border Protection. U.S. border policy has chosen to not criminally prosecute illegal border crossers before deporting them. One consequence of the way Title 42 has been implemented is thus that far fewer migrants have been referred for prosecution. Many immigration commentators had viewed criminal prosecution as a disincentive for crossing unlawfully.
Title 42 in combination with the Migrant Protection Protocols (MPP), a program for sending asylum seekers back to Mexico, has led to repeated attempts at border crossings. This appears to have driven up the number of encounters by border patrol. Many have observed that the dramatic decline of prosecutions in federal court for unlawful entry and unlawful reentry has resulted in fewer legal consequences and therefore fewer disincentives for attempting to repeatedly cross into the United States unlawfully.
On the other hand, Title 42 and the Migrant Protection Protocols have disrupted what is typically understood as the normal process for handling asylum claims along the U.S. Mexico border, and have therefore drawn criticism from immigrant rights organizations. Some migrants seeking asylum have in recent months been allowed into the United States to request asylum. But these numbers appear to have been limited. A ruling by a federal judge in September, however, found that Title 42 does not authorize the expulsion of migrants, and does not allow for those removed to be denied the opportunity to seek asylum in the U.S.
 See Alex Nowrasteh (2020) at the Cato Institute, who notes that "by removing [migrants] very rapidly and not enforcing consequences, apprehended and expelled illegal border crossers face lower costs in their attempts to cross the border." https://www.cato.org/blog/covid-19-transformed-us-policy-along-southwest-border.
 The number of CBP encounters counts events, not people.
 See Aaron Reichlin-Melnick (2021) at the American Immigration Council, who note that "Thanks to Title 42, the rate at which people crossed the border more than once rose from 7% in 2019 to 27% in 2021, the highest in decades." https://immigrationimpact.com/2021/10/26/open-borders-trump-biden/
 See the statement in May 2021 by UNHCR which raises concerns that Title 42 undermines the lawful asylum process. https://www.unhcr.org/en-us/news/press/2021/5/60a687764/statement-attributable-un-high-commissioner-refugees-filippo-grandi-need.html