Immigration imprisonment is a common feature of the United States legal system’s regulation of migration. On the civil side, ICE’s routine confinement of people suspected of violating immigration law is well-known. Often overlooked, however, are ICE’s partners on the criminal end of the immigration imprisonment spectrum.
Though most immigration law violations are civil infractions that result, at most, in removal from the United States, some features of federal immigration law are undeniably criminal offenses. Indeed, in recent years, prosecutions for immigration offense now constitute the single largest category of offenses charged in federal courts nationwide. In fiscal year 2016, for example, forty-three percent of all new criminal charges brought were for immigration offenses. Among the universe of federal immigration offenses, two are most commonly prosecuted: illegal entry and illegal reentry. Illegal entry is a misdemeanor punishable by up to six months imprisonment for a first offense. Illegal reentry is a felony punishable by up to two years for a first offense without prior convictions that trigger a sentencing enhancement. Both have been part of federal law since 1929, but neither was used much until the closing years of President George W. Bush’s second term.
Two parts of the Department of Justice have primary responsibility for confining people suspected or convicted of a federal immigration offense. The United States Marshals Service holds people who are suspected of and have been charged with a crime while the prosecution is ongoing. Technically, this is a form of civil detention, but it is inextricably linked to the criminal process. Growth in the USMS immigration suspect population is astonishing. From 1994 to 2013, the number of people held by the USMS pending criminal prosecution for an immigration offense increased by over 1,000 percent.
After conviction, offenders sentenced to a term of imprisonment are handed over to the federal Bureau of Prisons. The number of convicted immigration offenders in the BOP’s custody on a given day has similarly grown tremendously. The 1,728 immigration offenders in a federal prison in 1990 became 14,900 in 2015–a growth of 762 percent.
These data come from various issues of the Bureau of Justice Statistics publication series tracking the nation’s prison population. In particular, I relied on the versions for 1997, 1999, 2000, 2007, 2013, 2014, and 2015. Though the chart covers 1990 to 2015, it does not include every year in that span. I have been unable to find the daily number of immigration offenders in the BOP’s custody from 1991-1994 and 1997. I have submitted a FOIA request to the Bureau of Prisons to obtain this information and hope that will prove fruitful.