Criminal Immigration Referrals Up from the Border Patrol
(07 Jul 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 criminal reentry. Prosecutions for criminal entry which historically were much more common but rarely resulted in any significant jail time have not shown much of any recovery. Similarly, criminal referrals from Immigration and Customs Enforcement, have shown no real change.

In March 2020 the Trump administration invoked special border control procedures. Under Title 42 of the United States Code Section 265, most individuals without valid authorization were not allowed to enter the country and were immediately expelled. 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 to just 295 in April 2020.

For decades, federal criminal prosecutions for immigration violations had made up the majority of all offenses that federal prosecutors pursued. But this has not always been the case. At the beginning of the Clinton administration, one in ten criminal prosecutions recorded by assistant U.S. attorneys were immigration-related. 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.

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