The Rise of Federal Immigration Crimes

Dramatic growth over the past two decades in the number of offenders sentenced in federal courts has been driven primarily by enforcement of a particular immigration offense—unlawful reentry into the United States—according to an analysis of data from the United States Sentencing Commission (USSC) by the Pew Research Center.

Between 1992 and 2012, the number of offenders sentenced in federal courts more than doubled, rising from 36,564 cases to 75,867.¹ At the same time, the number of unlawful reentry convictions increased 28-fold, from 690 cases in 1992 to 19,463 in 2012.² The increase in unlawful reentry convictions alone accounts for nearly half (48%) of the growth in the total number of offenders sentenced in federal courts over the period. By contrast, the second fastest growing type of conviction—for drug offenses—accounted for 22% of the growth.

Immigrants charged with unlawful reentry—a federal crime—have entered or attempted to enter the U.S. illegally more than once. They may also have attempted to reenter the U.S. after having been officially deported.³ Many of those charged with unlawful reentry were apprehended at the U.S. border by the U.S. Border Patrol (Rosenblum, 2013).

As unlawful reentry convictions increased, the demographic composition of sentenced offenders changed (Lopez and Light 2009). In 1992, Latinos made up 23% of sentenced offenders; by 2012, that share had grown to 48%. Over the same period, the share of offenders who did not hold U.S. citizenship increased from 22% to 46%. Among federal sentenced offenders in 1992, 12% were unauthorized immigrants. By 2012, that share had increased to 40%.

Nearly all of those sentenced for unlawful reentry in federal courts received a prison sentence. On average, the sentence length for these offenders was about two years. As the number of offenders sentenced in federal courts for unlawful reentry increased, so too did the number of immigration offenders incarcerated in federal prisons. Between 1998 and 2010 alone, growth in the number of immigration offenders accounted for 56% of the increase in federal prison admissions (Mallik-Kane, Parthasarathy and Adams, 2012).

The data for this report comes from the USSC and covers all federal felony and misdemeanor cases between 1992 and 2012 for which the offense category is known and the offender is sentenced in federal courts.⁴ These data include all criminal immigration offenses sentenced under the U.S. Sentencing Guidelines, but do not include civil immigration charges that are heard before U.S. immigration courts.⁵

More Criminal Convictions, Fewer Voluntary Returns

Unlawful reentry convictions in federal courts are part of a broader stepped up enforcement effort from the U.S. Border Patrol begun in 2005.⁶ Prior to this change, immigrants apprehended at the border were largely allowed to voluntarily return to Mexico—without any penalty.⁷

Since 2005, however, the Border Patrol has reduced voluntary returns for immigrants it apprehends, while increasing the use of other strategies. These include criminally charging immigrants apprehended at the border with unlawful reentry and increasing the use of expedited removals (which do not require a judicial review). And for those immigrants who are apprehended at the border and removed, the Border Patrol has used remote repatriation as an additional strategy, sending deported immigrants to border ports many miles away from where they were apprehended, or, in the case of Mexican nationals, repatriating immigrants into the interior of Mexico (Rosenblum, 2013). These strategies are intended to break the smuggling cycle and deter an apprehended immigrant from attempting further illegal entries into the U.S.

Many immigrants convicted in federal courts of unlawful reentry in recent years were processed under a Border Patrol program called “Operation Streamline.” This program, implemented in five Border Patrol Southwest sectors⁸ in conjunction with federal courts and attorneys, allows up to 40 unauthorized immigrants charged with unlawful reentry to be prosecuted at the same time. This program alone has accounted for nearly half (45%) of all federal immigration-related prosecutions in Southwest border districts between 2005 and 2012 (Rosenblum, 2013).

Border enforcement efforts have increased even as the number of apprehensions at U.S. borders declined. Between 2005 and 2011, the number of border apprehensions fell by more than half, from 1.2 million to 340,000.⁹

Since 2011, though, border apprehensions have begun to rise again, reaching 421,000 in 2013. Much of the recent increase is among non-Mexican immigrants (Passel, Cohn and Gonzalez-Barrera, 2013).

The federal government has deported nearly 400,000 unauthorized immigrants a year since the start of the Obama administration. A growing share of those deported were convicted of a criminal offense, including some related to immigration crimes (Gonzalez-Barrera, 2014). There were an estimated 11.7 million unauthorized immigrants living in the U.S. in 2012, according to Pew Research Center estimates (Passel, Cohn and Gonzalez-Barrera, 2013). Most, about three-quarters, are from Latin America.

Growth in Unlawful Reentry Cases Changing the Federal Case Load

The rising number of convictions for unlawful reentry has altered the offense composition of federal offenders. In 2012, immigration offenses—of which unlawful reentry is the largest category—represented 30% of offenders, up from 5% in 1992.

Unlawful reentry cases alone accounted for 26% of sentenced federal offenders—second only to drug offenses in 2012. This is up 13-fold since 1992, when offenders sentenced for unlawful reentry made up just 2% of sentenced offenders. These trends match the population growth in the Federal Bureau of Prisons system.

This report examines the characteristics and trends of offenders sentenced in federal courts. The data for this report are from the United States Sentencing Commission’s Monitoring of Federal Criminal Sentences data files for fiscal years 1992 through 2012. These files contain information on sentencing decisions for all federal felony and Class A misdemeanor cases. Only those cases with documentation compiled by the USSC are included in the data files.

Among the report’s other findings:

Offense Convictions in Federal Courts

• Among unauthorized immigrants sentenced in federal courts in 2012, 68% were convicted of “unlawfully entering or remaining in the United States,” 19% were sentenced for drug offenses, 7% were sentenced for other immigration related offenses and the remainder (6%) were sentenced for other crimes.¹⁰
• In 2012, 74% of all unlawful reentry cases were sentenced in just five of the nation’s 94 U.S. district courts. All five were located along the U.S.-Mexico border: the Southern and Western Districts of Texas, the District of Arizona, the District of New Mexico, and the Southern District of California.

Demographics of Sentences Federal Offenders

• Hispanics accounted for 48% of sentenced federal offenders in 2012, the single largest racial/ethnic group represented. Non-Hispanic whites constituted 27% of federal sentenced offenders and non-Hispanic blacks made up 20%. The remainder (4%) are Asians, Native Americans, and those whose race and ethnicity are indeterminate.
• In 2012, 92% of unlawful reentry offenders were Hispanic.

Prison Sentences

• Non-U.S. citizens sentenced in federal courts were more likely to receive a prison sentence than U.S. citizens—97% versus 86%.
• Unauthorized immigrants were somewhat more likely to be incarcerated after conviction than immigrants who were in the U.S. legally—98% versus 91%.
• Hispanic offenders are more likely than non-Hispanic offenders to receive a prison sentence in 2012—97% versus 87%.