A new report indicates that federal law enforcement agents, prosecutors, and courts are significantly involved in regulating immigration law through the criminal process. Mark Motivans, Federal Justice Statistics, 2011-2012 (Jan. 2015). By overall historical standards, this is quite anomalous, but it is in line with the trend we’ve seen in recent years (see my analysis of parallel data for fiscal year 2010). Law enforcement investigations and arrests for alleged immigration law violations are at eye-catching rates, with the bulk of those arrested individuals soon finding themselves in federal criminal proceedings.
Immigration law’s major presence in the federal criminal apparatus begins at the investigation stage. According to the report, “[i]mmigration arrests doubled from 1994 to 1998, doubled from 1998 to 2004, a
nd doubled again from 2004 to 2008.” Id. at 4. Not surprisingly, suspected violation of a criminal immigration law provision was the most common reason for arrest by a federal law enforcement officer in fiscal year 2012. Id. at 2. Indeed, a full 50% of arrests that year were for immigration offenses, far ahead of the second-leading basis for arrests—suspected drug crime—which came in at 15% of arrests. Id. Clearly federal law enforcement agents were busy arresting migrants. The U.S. Marshals Service alone arrested and booked 85,458 individuals in FY 2012 on immigration law charges, an increase of 2,252 from FY 2011. Almost half (49.9%) of people arrested and booked by marshals in FY 2012 were alleged immigration law violators. Id. at 3.
ICE also kept busy during FY 2012, increasing its arrest rate on average 22.1% annually from FY 2008 to FY 2012. Id. at 7. In FY 2012, it arrested 42,788 people. Id. Interestingly, CBP’s annual arrest rate declined by 5.8% during this period, perhaps reflecting the Obama Administration’s concerted focus on interior enforcement. Despite that drop, CBP still made 48,108 arrests in FY 2012. Id. at 7. To be fair, the report does not state how many of ICE and CBP’s arrests were on immigration law charges, but it’s fair to assume that it was a substantial percentage.
Most individuals charged with an immigration crime were detained prior to trial. Indeed, 88.1% of immigration defendants were detained. Id. at 16 tbl.9. This was well above the overall average pre-trial detention rate of 76.7% and beat the next highest category, weapons offenses (85.8%) by 2.3%. In comparison, 84.2% of individuals charged with a violent crime were detained prior to trial, as were 84.3% of drug defendants. Id.
With such large numbers of arrests by federal officers, it comes as no surprise that federal prosecutors were also busy with immigration cases in FY 2012. That year, 48% of all the matters they concluded involved an immigration offense. This was the single largest category of caseload on U.S. Attorneys’ workload, far exceeding the second-leading type of case, drug offenses, which constituted 19.6% of the matters they concluded in FY 2012. Immigration cases were also the fastest growing type of case they saw, increasing by an average annual rate of 3.7% from FY 2008 to FY 2012. Id. at 12 tbl. 6.
These were also the type of cases that were most likely to be prosecuted. Prosecutors declined to bring charges in a mere 0.8% of immigration cases. This pales in comparison to the overall declination rate of 15.1% and the next lowest declination rate of 15.7% for drug cases. Id. at 13 tbl.7. What’s fascinating about the remarkably low declination rate for immigration crimes is that an alternative prosecution mechanism exists—individuals who are present in the United States without authorization can be prosecuted through the nation’s civil immigration law enforcement system overseen by immigration judges. The fact that almost 100% of immigration cases referred to federal prosecutors are actually prosecuted means that the federal government views criminal punishment as an important part of its immigration policing powers.
Federal courts naturally dealt with a large number of immigration cases as well. There were 92,345 matters concluded in FY 2012 in which an immigration charge was the most serious offense. Of those, 28.1% were handled by district courts while magistrate judges handled the vast majority—71.1%. Id. at 13 tbl. 7. Because magistrates generally deal with misdemeanor charges, the three-quarters or so of immigration cases they dealt with were prosecutions for illegal entry, INA § 275. The immigration cases handled by district courts were likely prosecutions for illegal reentry, INA § 276, a federal felony. Interestingly, it took magistrate judges an average of zero days—that’s correct, zero—to dispose of immigration cases. Id. According to the report, this was likely attributable to “a strategy to expedite case processing by charging first-time illegal entrants with a petty misdemeanor offense.” Id. at 14.
The report also indicates that being charged with an immigration crime is more likely to lead to a conviction than is true of other federal crimes. While 91.3% of all federal defendants were ultimately convicted, that was true of 96.7% of immigration defendants in FY 2012 or 25,695 people. Id. at 19 tbl.11; id. at 21 tbl.13. Almost all of these convictions (96.7%) were obtained through pleas. Overall, 88.9% of federal convictions resulted from pleas. Id. at 19 tbl.11.
Convicted immigration offenders were slightly less likely to be sentenced to prison time, than other types of offenders and frequently they were imprisoned for less time than other offenders. While 77.3% of all convicted federal offenders were sentenced to prison, that was true of 76.6% of immigration offenders in FY 2012. Id. at 21 tbl.13. When they were sentenced to prison, immigration offenders received a median prison term of 16 months, about half of the 33-month median prison term for all offenders. Id. This difference is probably attributable to the fact that immigration offenders are usually subject to removal through the civil immigration court system after completing their criminal punishment.
In all likelihood because they tend to receive less prison time then other offenders, “[i]immigration offenders made up 12% of the prison population in 2012” despite overshadowing other types of federal crimes prosecuted that year. Id. at 22. After serving their time, immigration offenders were a bit more likely than average to return to prison within 3 years of release, at least in FY 2010—17.1% of immigration offenders suffered this fate in contrast to 15.2% of all federal offenders. Id. at 26 tbl. 15. Most (84%) returned to prison due to new offenses. This is unusual. Only 42.9% of people who returned to federal prison within 3 years of release did so because of a new offense; most of the rest (54.4%) were there because they violated a supervision order. Only 16% of re-imprisoned immigration offenders were there because of a supervision violation. Id. Though unusual, this isn’t surprising given that immigration offenders are usually removed from the United States after completing their criminal sentence. Coming back without authorization is an independent federal felony.
In the end, the Justice Department report illustrates immigration law’s significant presence in the federal criminal justice system. Given the political dynamics in Washington, D.C., that’s unlikely to change. Indeed, if anything I suspect that the federal government will expand its reliance on criminal law to regulate immigration activity rather than return to the historical norm of using the nation’s civil immigration law process.
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Hopefully, the situation is getting better.