Criminal Immigration Prosecutions Drop at Southern Border

The United States has been facing an unprecedented level of illegal crossings along the Southwest border. As the number of unauthorized entries continues to climb, it would seem that there should be a proportional increase in the number of individuals being charged with immigration-related crimes. But that hasn’t been the case.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University released a report detailing the number of prosecutions for immigration-related criminal offenses along the southern border. The TRAC report classifies border entry violations into three categories: unlawful entry (8 USC 1325), unlawful reentry (8 USC 1326), and bringing in and harboring certain aliens (8 USC 1324).

The report found that before the Covid-19 pandemic began in March 2020, prosecutions for unlawful entry typically surpassed 3,000 each month. However, the months that followed experienced a steep decline in unlawful entry prosecutions, owing the COVID-induced severe economic dip and Trump administration policies aimed at discouraging illegal immigration. For example, in June 2020, prosecutions for unlawful entry peaked at 35 and did not surpass that figure in the following months.

Moreover, the decline of unauthorized entry charges has remained consistently low in FY 2021 (October 2020 – September 2021), even as illegal immigration exploded after Joe Biden became president. In fact, the total number of prosecutions for unlawful entry plunged to 267 for FY 2021, a record low since 1986.

Similarly, prosecution of criminal reentry offenses declined at the inception of the pandemic. In April 2020, only 324 prosecutions were made for reentry violations, compared with the more than 3,000 charges made in March of that same year. While reentry prosecutions increased to 1,007 in August 2020 and have steadily risen, the number of prosecutions in FY 2021 is significantly lower compared with previous years.

Prosecutions for harboring unlawful migrants has been the only immigration offense that has steadily increased after the early stages of the pandemic. Smuggling charges decreased from 407 in March 2020 to 92 the following month. In September 2020, 395 harboring prosecutions were made and have increased each succeeding month. Furthermore, 559 prosecutions were made in April, surpassing the average of 510 charges made per month before the pandemic. However, these totals are not increasing proportionally to the increase in apprehensions at the border, suggesting that fewer prosecutions are being pursued.

The TRAC report attributes the massive decline in immigration-related prosecutions to the use of Title 42, which allows Customs and Border Protection (CBP) to quickly expel migrants to prevent the spread of infectious diseases in the United States. Additionally, the report points to the Migrant Protection Protocols (MPP) contributing to fewer prosecutions, as asylum applicants had to wait in Mexico for their claims to be processed instead of entering the United States, decreasing the chance of repeated entries. As a result, implementing the public health measure and MPP has resulted in many illegal aliens being returned to their home countries, and fewer migrants being referred for prosecution.

With the rise of illegal crossings, the administration should be directing CBP to refer more cases for border entry violation cases to the U.S. Department of Justice. Charging illegal aliens when they break our laws serves as a deterrent to repeat entry offenders and human smugglers, which could help ease the chaos occurring at the southern border. But for politically motivated reasons, the Biden administration has opted not to do so to the detriment of the nation’s security.