Official Figures Show Steady Decline in DOJ Criminal Immigration Prosecutions

By Edwin Mora | June 25, 2012 | 6:44 PM EDT

A Customs and Border Protection Border Patrol agent pats down a man near the Mexico border. (Photo: CBP/Gerald L. Nino)

( – The number of criminal immigration prosecutions by the Department of Justice, stemming from referrals by Immigration and Customs Enforcement and Customs and Border Protection agencies over the year ending in March 2012 dropped in comparison to previous years, according to the latest available federal data.

Through the Freedom of Information Act, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University obtained the data from DOJ’s Executive Office for United States Attorneys. TRAC describes itself as a non-partisan “data gathering, data research and data distribution organization.”

Over the 12-month period from April 2010 to March 2011, the number of DOJ prosecutions resulting from referrals by Immigration and Customs Enforcement (ICE) totaled 21,669. By comparison, the period April 2011 to March 2012 accounted for 19,149 prosecutions based on ICE referrals – an estimated 12 percent drop.

DOJ prosecutions stemming from Customs and Border Protection (CBP) investigations dropped by six percent over the same period, from 69,840 in the April 2010-March 2011 period to 65,440 between April 2011 and March 2012.

ICE and CBP are both components of the U.S. Department of Homeland Security charged with enforcing U.S. immigration laws. CBP deals with illegal cross border activity at and in between the ports of entry and ICE deals with deportations and immigration law violators inside the country.

Under the Obama administration, ICE in June 2011 determined it would employ prosecutorial discretion in deciding which illegal aliens to deport. It is now focusing on aliens with serious criminal records.

“Until February 2011, ICE criminal prosecutions had been climbing, reaching a peak of 21,686 on an annual basis,” TRAC said in releasing the latest DOJ immigration prosecution figures. “Since then, using a 12-month moving average, numbers can be seen to have been falling.”

TRAC noted that while the number of ICE criminal prosecutions has decreased, the number of ICE deportations is on track to reaching its stated goal of around 400,000 during FY 2012.

CBP-referred prosecutions have decreased over the first three years of the Obama administration, according to the figures obtained by TRAC.

“CBP prosecutions display a sharp rise beginning in February 2008. One year later in February 2009 CBP criminal prosecutions reached a peak of 80,147 over a 12-month period,” said TRAC.

“However, over the past three years (with some month-to-month variation) there has been a steady decline in criminal prosecutions resulting from referrals from the Border Patrol and other CBP officers catching violators at ports of entry. For the 12-month period ending in March 2012, CBP prosecutions had fallen to 65,440 – 18 percent below their peak.”

In FY 2011. an illegal alien faced an estimated 20 percent chance of facing criminal prosecution if apprehended by CBP: There were 340,252 apprehensions nationwide, but only 69,080 CBP-referred prosecutions that year, according to the data obtained by TRAC.

The previous year, 463,382 apprehensions nationwide resulted in 72,572 prosecutions, putting the odds of prosecution for an illegal alien who had been arrested by CBP at an estimated 16 percent.

In FY 2009 and FY 2008 the proportion of arrests to prosecutions was 14 percent and nine percent respectively.

TRAC attributes this steady increase in the chances of an illegal alien facing CBP-referred prosecution to the decline in illegal alien apprehensions by Border Patrol, a component of CBP.

“Border Patrol apprehensions along the southwest border have, however, been falling at a much faster rate than the declines in criminal prosecutions,” stated TRAC. “This means that for an individual caught illegally entering the country, the odds of criminal prosecution have actually moved sharply up, not down.

“During FY 2011, around 20 percent of apprehensions resulted in a CBP-referred criminal prosecution – up from 16 percent in FY 2010 and only two percent as recently as FY 2006.”

TRAC noted, however, that “criminal prosecution, of course, is not the only sanction that awaits individuals apprehended illegally crossing the border.” CBP may refer an illegal alien to ICE for detention or removal.

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