Sharp Decline in Criminal Immigration Prosecutions
(12 Feb 2020) During October 2019 criminal prosecutions referred to the Department of Justice (DOJ) by immigration enforcement agencies fell 4.2 percent, continuing their sharp decline over the past year. The DOJ reported 8,315 new prosecutions were filed in October 2019 compared with 13,286 a year ago - down 37.4 percent.

Criminal prosecution trends have been driven largely by referrals from Customs and Border Protection (CBP) rather than by Immigration and Customs Enforcement (ICE) or Citizenship and Immigration Services (USCIS). Yet the trend in CBP-referred prosecutions does not map neatly onto the trend in Border Patrol apprehensions along the Southwest border. In fact, just as apprehensions began climbing sharply in March of 2019, criminal prosecutions began to fall. Criminal referrals were driven not by rates of unlawful border crossing, but by policy decisions directing CBP and federal prosecutors to focus on specific crimes for federal prosecution under a so-called "zero tolerance" policy. However, while prosecutions climbed they fell far short of their goal of zero tolerance.

Prosecutions fell after Attorney General Sessions resigned. Sessions had personally championed prioritizing criminal prosecution of illegal entry offenses. Other demands for staffing time competed for attention. With limited investigative and prosecution resources, devoting more resources to prosecuting immigration offenses inevitably had meant fewer resources were available to pursue other types of federal offenses.

Criminal immigration prosecutions outside of the Southwest border districts since President Trump assumed office have remained well below the levels of all but the last two years of the Obama Administration.

These findings are based on case-by-case records obtained through Freedom of Information Act (FOIA) lawsuits by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

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