Behind the Report: Immigration Prosecutions in Federal Court

Yesterday, we at TRAC published a report on the number of prosecutions in federal court for key immigration-related charges. The three charges that I choose to look at are unlawful entry, unlawful reentry, and harboring. I would like to provide some additional background here along with an unpublished graph at the bottom of the article.

Just a quick explanation on each of these, although please understand that, in reality, these are far more complicated than I can meaningfully summarize here.

  • Unlawful entry basically means crossing the border without authorization somewhere, say, in the desert or by crossing through the river, and probably most corresponds to what people think of when they think of undocumented migration. Note that this is far from the only way to be “undocumented”, and also note that the use of unlawful entry has changed over time as a political matter.
  • Unlawful reentry basically means that someone has already been ordered deported and tries to cross again. Simple enough.
  • Harboring means helping to facilitate undocumented migration. As I found in a previous study (available here), harboring law is quite expansive.

Because TRAC obtains detailed data on all prosecutions in federal court each month, we are able to dive into specific charges and look at the number of prosecutions over time. What we found was that the number of prosecutions fluctuates considerably from month to month and year to year based more (it seems) on policy decisions and border enforcement practices than simply the number of people who might potentially be prosecuted. Of course, this is hardly news to any criminologist who knows that this is how most prosecutions work, but it’s still relevant for immigration researchers and journalists to understand this with data to back it up.

We published two graphs in the official report, which show the following.

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

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.

Unpublished Graph of Immigration Prosecutions

The above data focuses on January 2017 to September 2021 (the end of the fiscal year 2021). In addition to these findings, though, I wanted to add a graph — a set of three graphs, really — that I made showing each of these prosecutions going all the way back to 1998, the first year for which we have data. I think looking at the longer trends in these charges can be interesting and insightful. Now, to be clear, I am not at all going to go through every fluctuation here and attempt to explain the trends. But I share these graphs anyway in order to encourage others to think through this data, explore it, and share it. If you have comments or questions, please feel free to comment below.

You can see the original published report on TRAC’s website here: https://trac.syr.edu/tracreports/crim/665/.

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Austin Kocher, PhD

I study America’s immigration enforcement system. Assistant Professor at TRAC. Graduate of OSU Geography. Online at austinkocher.com.