Immigration Prosecutions' Five-Year Trend Downward, Particularly in the Interior

By Dan Cadman, April 10, 2015

Syracuse University's Transactional Records Access Clearinghouse (TRAC) recently issued a gem of a report on federal immigration prosecutions. Although it initially deals with the February 2015 numbers (the most recent available), what makes the report valuable — and revealing — is its in-depth analysis of such prosecutions for the last five years.

Looked at in that light, we find in Table 1 of the report that, although prosecutions were up for the month of February by 1.6 percent compared with a year ago, they are down by .7 percent over the course of the past five years, including magistrate courts — but they are down by a hefty 27 percent if one doesn't include magistrate courts.

That difference is extremely significant because by law federal magistrates are only permitted to hear misdemeanor cases (see 18 U.S.C. § 3401), although they can preside over initial appearances of all defendants, with the permission of the district court in which they sit.

Consider that nearly the only immigration crime constituting a misdemeanor is illegal entry into the United States (8 U.S.C. 1324), which, because it is not deemed to be a continuing offense, can only be prosecuted proximate to the border as aliens are found entering or attempting to enter. For this reason, the overwhelming majority of such prosecutions, nearly 100 percent, are presented by Border Patrol agents.

Thus, when considering the implication on interior prosecutions for federal immigration offenses, the relevant, but disturbing, number presented to us by Table 1 is the fact that, compared to five years ago, non-magistrate felony cases involving the kinds of prosecutions presented in the interior — often for reentry after deportation (8 U.S.C. 1326) — are down by more than a quarter.

One other interesting point in the data: When examining the top locales where prosecutions are presented (under the header, "Top Ranked Judicial Districts"), I suggest the reader focus not on which locations are listed, but on those that aren't to be found. You won't find New York, Los Angeles, Chicago, Dallas, Miami, or nearly any major metropolitan area with substantial numbers of illegal aliens. San Diego is an exception, of course, but only because it sits right at the border.

None of this should be a surprise to anyone given the Obama White House's gutting of interior immigration enforcement measures all across the spectrum. It is, after all, more politically difficult to completely halt enforcement directly at the border, though the signs are there that in that arena, too, they have done what they can to render it ineffective. See, for instance, Jessica Vaughan's recent piece, "Influx of Central American Teen and Family Arrivals Continues", which makes the cogent point that nearly no one is deported even when apprehended at the border.

How much more damage can this administration do in its remaining 22 months in office?