2015 Sentencing Commission Report Documents Downward Trend in Prosecution for Immigration Crimes

By Dan Cadman and Dan Cadman on July 26, 2016

The United States Sentencing Commission has just issued its annual report, which documents on a yearly basis the upward and downward trends of prosecutions, convictions and sentencing among the range of federal criminal laws.

The immigration-related portions of the report on federal criminal prosecutions are worth noting. What, you might ask, are the kinds of federal criminal offenses relating to immigration that result in prosecution? In broad-brush terms, they would include:

  • Unlawful entry into the United States
  • Reentry into the United States after removal (deportation)
  • Alien smuggling
  • Fraud or false statements in procuring visas or entry into the United States
  • Fraud in the procurement of naturalization

Although the Commission's report reflects the year 2015, they provide a perfect complement to the Backgrounder just published by the Center's National Policy Director Jessica Vaughan, “Enforcement Continues Decline”, which documents the downward trend in 2016 of enforcement of the nation's civil immigration (that is to say, the deportation and removal) laws.

Unfortunately, the Sentencing Commission report also reflects a significant decline in prosecutions for federal immigration-related criminal offenses. According to the Sentencing Commission:

Immigration cases were the next most common [after drug cases], accounting for 29.3 percent of the total federal caseload. In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined. The 20,771 immigration cases reported to the Commission in 2015 represent a 6.6 percent decrease from 2014, and a 30.1 percent decrease from 2011[emphasis added].

When debating criminal prosecution for immigration offenses, migrant advocacy groups (and sometimes even prosecutors) frequently suggest that prosecution of aliens for offenses is an inappropriate use of limited prosecutorial resources because the offenses usually also carry civil penalties such as removal that are more appropriate. That is a false narrative for two reasons.

First, as seasoned immigration and border-area law enforcement officers and prosecutors know, sometimes the only way to dissuade repeated border crossers (especially those removed for criminal offenses in the first place) is by criminally prosecuting them for illegal entry or reentry after removal. Else, the border simply becomes a turnstile for the most determined.

Second, as becomes painfully obvious when the information in the two reports (Vaughan's and the Sentencing Commission's) are put together, removals too are at a nadir. The premise that deportation is an efficient substitute for prosecution is completely off-base. What often happens is that after criminal charges are dismissed — or never presented — when the alien is presented to an immigration court, the same advocates who argued against prosecution in favor of removal proceedings now suggest to the immigration judge (or even before that, to the government's trial attorneys) that the reason the prosecution never took place was because it lacked merit and therefore the alien should be accorded some form of relief, or should not be torn from his family, or should be forgiven for his illegal reentry.

Here are a couple of other interesting factoids from the report:

  • 41.5% of all federal offenders were non-citizens, and
  • The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993. “This significant reduction was due, in large part, to a change in the policy of the Department of Justice in 2013 as to how to charge drug cases.”

These two items are relevant to immigration and border enforcement for the perhaps not-so-obvious reason that a significant number of federally-prosecuted drug offenders are those caught transporting narcotics across our international borders. They suggest that, even where cross-border drug trafficking is concerned, this administration is nearly as lax as it is with immigration offenses. This is astounding at a time when Mexico is being roiled by vicious internecine warfare among and between violent cartels, whose lawless acts so often spill over onto our side of the frontier.

That federal criminal prosecutions for immigration offenses are down by nearly a third in a short four-year time frame, and that the federal government has gone soft on drug-trafficking offenses should probably not be a surprise, given the obvious and concerted effort by the Obama White House to functionally dismantle virtually every aspect of the nation's immigration and border security apparatus. Along with the data in Vaughan's report, it starkly reveals the falseness of the administration's narrative that border security is better than it has ever been.