Sharp Decline in Criminal Immigration Prosecutions

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[1] compared with 13,286 a year ago - down 37.4 percent. Those 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.

The Department of Homeland Security's three immigration enforcement agencies - Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Citizenship and Immigration Services (USCIS) - investigate both civil and criminal violations of the law. While these agencies can institute civil enforcement actions directly, they must refer any criminal matters to the Department of Justice whose prosecutors decide whether a criminal prosecution should be filed.

As shown in Figure 1, trends for referred cases have been driven largely by CBP rather than by ICE or USCIS. CBP-referred prosecutions began around 5,000 at the beginning of 2018, then rose sharply throughout the spring of 2018 and peaked around 11,000 during June through October of 2018 before steadily declining at the end of the year.

Figure 1. Criminal Prosecutions from ICE, CBP, and USCIS Referrals, October 2009 - October 2019
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What accounts for this pattern in CBP's criminal referrals to the Department of Justice? The simplest explanation, if the percent of criminal referrals is constant, is that increases in the number of border crossings leads to increases in referrals. 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. Figure 2 compares trends in criminal prosecutions over the last two years with Border Patrol arrests of single adults, who one might expect to be prime targets for criminal prosecution[2]. Similarly, when Border Patrol arrests of adults in family units are plotted against criminal prosecutions, their apprehensions followed parallel month-to-month trends to those of single adults[3].

If the trend in criminal prosecutions were not driven by trends in Border Patrol arrests along the Southwest border, how can these trends be explained? We find that 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. On April 6, 2018, then Attorney General Jeff Sessions announced a 'zero- tolerance policy' for those who 'illegally cross over our border[4]'. Criminal prosecutions climbed as a result although they fell far short of their goal of zero tolerance. Criminal prosecutions at their height (see Figure 2 below) were always far fewer than even the number of single adults arrested by the Border Patrol. And when parents arriving as part of family units are included along with single adults, only a minority of immigrants who crossed unlawfully were federally prosecuted[5].

After the resignation of former Attorney General Sessions who had personally championed prioritizing criminal prosecution of illegal entry offenses, prosecutions fell. 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 such as drug offenses, weapons, and white-collar crimes[6].

Figure 2. Border Patrol Apprehensions versus Criminal Prosecutions from CBP Referrals, October 2017 - October 2019
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Criminal Immigration Prosecutions Outside SW Border Districts

In October 2019, the five judicial districts along the Southwest border accounted for 91 percent of criminal prosecutions referred by ICE, CBP, and USCIS. The remaining judicial districts saw only 9 percent of criminal prosecutions referred by these agencies.

Even though ICE deals with interior enforcement which means that they can refer criminal cases from anywhere in the United States, even their referrals were still concentrated in the five Southwest border judicial districts. In fact, just 41 percent of criminal prosecutions from its referrals during October 2019 were outside these five border judicial districts. USCIS showed a similar pattern. Only 34 percent of criminal prosecutions from USCIS referrals in October originated outside the five border judicial districts.

Although CBP has jurisdiction along the entire US border, including the US-Canadian border, it concentrates its resources along the US-Mexican border. The agency is only a minor player when it comes to criminal prosecutions in the rest of the United States: just 2 percent of CBP criminal prosecutions in October 2019 occurred outside Southwest border districts.

In general, criminal prosecutions outside of the Southwest border districts declined during most of the Obama Administration. Once President Trump took office, prosecutions leveled off and remained relatively steady despite considerable month-to-month fluctuations. In October 2019 ICE, CBP, and USCIS were the source of only 692 criminal prosecutions in the remaining 89 judicial districts outside of Arizona, Southern California, New Mexico, Southern and Western Texas. Levels remained well below the levels of all but the last two years of the Obama Administration. See Figure 3.

Figure 3. Criminal Prosecutions Outside SW Border from ICE, CBP, and USCIS Referrals, October 2009 - October 2019
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[1] In addition to referrals by CBP, ICE, and USCIS, October 2019 prosecution numbers also include a small number (279) of prosecutions referred by other DHS border security and immigration enforcement units involving joint DHS state and local task forces, the U.S. Coast Guard, and the Transportation Security Administration. While this report focuses on prosecutions resulting from referrals from the investigative agencies, most immigration referrals result in a prosecution being filed. For CBP, historically over 99 percent of its referrals result in criminal prosecution.

[2] Even taking into consideration the number of individuals diverted to the MPP ("Remain in Mexico") program , CBP arrestees not diverted to MPP still grew sharply.

[3] Border Patrol apprehensions by month for single adults versus family units through the beginning of this fiscal year are available here which provides links to similar figures for earlier fiscal years.

[4] While the government used the excuse of criminal prosecutions of parents necessitating the separation of children from their parents, criminal prosecution trends do not closely follow actual use of family separations. These began in the summer of 2017 many months before the zero tolerance policy was announced and elevated criminal prosecutions continued for many months after the policy ended in June 2018 in response to the President's decision to end the practice on June 20 and an order on June 26 by a federal judge requiring the government to halt separations and reunite children with their parents.

[5] TRAC reports chronicling the jump in criminal prosecutions and prosecution odds during April 2018 and May 2018.

[6] TRAC's August 2018 report documented the concurrent drop in drug prosecutions in border districts. See also TRAC's report with trends updated through October 2018 and December 2018.

TRAC offers free monthly reports on program categories such as white collar crime, immigration, drugs, weapons and terrorism and on selected government agencies such as the IRS, FBI, ATF and DHS. For the latest information on prosecutions and convictions, go to In addition, subscribers to the TRACFed data service can generate custom reports for a specific agency, judicial district, program category, lead charge or judge via the TRAC Data Interpreter.