By John Scalia

BJS Statistician

The number of noncitizens processed

in the Federal criminal justice system

increased an average 10% annually

from 1984 to 1994. During 1984,

3,462 noncitizens were prosecuted in

U.S. district courts; during 1994, more

than 10,000 were prosecuted. The

greatest part of this increase occurred

between 1986 and 1989, when the

number increased by almost 6,000.

Since 1989 the number has remained

fairly stable. 

In contrast to the substantial increase

in the number of noncitizens prosecuted, the overall Federal criminal

caseload increased at a much slower 

rate between 1984 and 1994  an 

average of less than 2% annually.

During 1984 approximately 49,000 

defendants were prosecuted in U.S.

district courts; during 1994 approximately 59,000 were prosecuted.

The increase in the overall number of

noncitizens prosecuted is primarily the

result of the increase in the number 

of noncitizens charged with drug offenses  particularly between 1986

and 1989. The number of noncitizens

charged with a Federal drug offense

increased at an average 13% annually 

U.S. Department of Justice 

Office of Justice Programs 

Federal Justice Statistics Program

Noncitizens in the Federal 

Criminal Justice System, 1984-94

Bureau of Justice Statistics

Special Report

August 1996, NCJ-160934

Highlights

Between 1984 and 1994, the number of noncitizens serving a sentence of imprisonment in a Federal

prison increased an average of 15%

annually  from 4,088 to 18,929; the

overall Federal prison population, by

contrast, increased an average 10%

annually  from 31,105 to 87,437.

 55% of the noncitizens prosecuted

in Federal court during 1994 were in

the United States legally.

 During 1984 about 35% of noncitizens prosecuted in Federal court

were charged with a drug offense.

By 1994 the proportion charged 

with a drug offense had increased 

to 45%.

 Nearly all (93%) prosecutions for

immigration offenses involved

noncitizens.

 1.4% of noncitizens prosecuted in

Federal court were charged with a

violent crime compared with 8.5% 

of citizens.

 Noncitizens convicted of a Federal

drug offense were more likely than

citizens to have played a minor role

in the drug conspiracy. Approximately 29% of noncitizens convicted

of a drug offense received a downward sentencing adjustment for 

“mitigating role,” compared with 14%

of U.S. citizens.

1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994

0

4,000

8,000

12,000

16,000

20,000 Total

Drug

Publicorder

Property

Violent

Noncitizens in Federal prisons, 1984-94
from 1984 to 1994. During 1984,

1,204 noncitizens were charged with a

drug offense; during 1994 more than

4,600 were charged with a drug

offense. 

Noncitizens convicted of a Federal

drug offense were more likely than citizens to have played a minor role in the

drug conspiracy. Approximately 29%

of noncitizens convicted of a drug offense received a downward sentencing

adjustment for “mitigating role,” compared with 14% of U.S. citizens. Similarly, among Federal prison inmates

serving a sentence for a drug conspiracy, 69% of noncitizens, compared

with 56% of U.S. citizens, identified

their role in the conspiracy as

low-level.

During 1994, 4,322 noncitizens convicted of a Federal drug offense received a prison sentence with an

average term of 69.9 months (table 9).

U.S. citizens convicted of a Federal

drug offense received prison sentences with an average term of 85.2

months. By law, Federal prisoners

must serve at least 85% of the sentence before being released.1

 Therefore, a noncitizen convicted of a drug

offense and sentenced to the average

term of imprisonment could expect to

serve 61 months before being released

and deported.

Because of the increases in the number of noncitizens convicted and in

time served by offenders, the number

of noncitizens serving a sentence in

Federal prison increased an average 

15% annually between 1984 and 1994.

During 1984, 4,088 noncitizens were

serving a sentence of imprisonment 

56% for a drug offense; during 1994,

18,929 were incarcerated  75% for a

drug offense.

The number of noncitizens serving a

sentence of imprisonment increased at

a faster rate than the overall Federal

prison population. While the number

of noncitizens incarcerated increased

an average 15% annually, the overall

population increased by 10% annually

 from 31,105 during 1984 to 87,437

during 1994.

The average cost to incarcerate an inmate in a Federal correctional institution during 1994 was approximately

$21,300. Therefore, the U.S. Government expended an estimated $400 million during 1994 to incarcerate 18,929

noncitizens who were convicted of a

Federal offense.

Types of noncitizens

Federal law identifies three major

types of noncitizens:

(1) immigrants  persons who migrate to the United States and who 

are granted legal permanent residence

(2) refugees and asylees  persons

who are outside of their country of 

nationality and are unable or unwilling

to return to that country for fear of persecution 

(3) nonimmigrants  persons who are

admitted to the United States for a

temporary period but not for permanent residence, for example, tourists,

students, foreigners working in the

United States, and Mexican and Canadian citizens with Border Crossing

Cards.

The vast majority of noncitizens legally

admitted to the United States are

nonimmigrants. Excluding border

crossers, many of whom make numerous entries annually, about 23 million

noncitizens were admitted during 1994:

approximately 800,000 were immigrants, 126,000 were refugees and

asylees, and more than 22 million were

nonimmigrants (table 1). The majority

(78%) of nonimmigrants admitted to

the United States were tourists. The

number of noncitizens legally admitted

to the United States increased at an

average of 8% annually from approximately 10 million during 1984 to 23

million during 1994.

Status of noncitizens

The U.S. Immigration and Naturalization Service (INS) assigns a status to

identify the legality of a noncitizen’s

presence in the United States. The

two statuses used include: 

(1) legal aliens  noncitizens who 

enter the United States after inspection

and have not violated the terms of their

admission; 

(2) illegal aliens  noncitizens who (a)

enter the United States without having

been admitted after inspection or without presenting themselves for inspection or

2 Noncitizens in the Federal Criminal Justice System

Table 1. Number of noncitizens admitted to the United States, 1984-94 (in thousands)

Type of entry 1984 1985 1986 1987 1988 1989 1990 1991c 1992c 1993c 1994

Total 9,917 10,179 11,135 12,947 15,322 17,346 19,226 20,850 22,012 22,580 23,048

Immigrants 544 570 602 602 643 1,091 1,536 1,827 974 904 804

Refugees and asylees 80 69 62 72 87 110 116 103 127 120 126

 Refugeesa 68 62 58 67 80 101 110 100 123 113 114

 Asyleesb 12 7 4 5 7 9 6 3 4 7 12

Nonimmigrants 9,293 9,540 10,471 12,273 14,592 16,145 17,574 18,920 20,911 21,556 22,118

 Tourists 6,595 6,609 7,342 8,887 10,821 12,115 13,418 14,618 16,441 16,918 17,154

 Business 1,623 1,797 1,938 2,132 2,376 2,553 2,661 2,616 2,788 2,961 3,164

 Other 1,075 1,134 1,191 1,254 1,395 1,477 1,495 1,686 1,682 1,677 1,800

a

The number of refugees reported represents the number admitted.

b

The number of asylees reported represents the number of individuals

granted asylum by INS district directors and asylum officers.

c

The number of nonimmigrants admitted during 1991-93 reflects the 

revised numbers published by INS in the 1994 Statistical Yearbook.

Source: United States Department of Justice, Immigration and 

Naturalization Service, Statistical Yearbook, annual.

1

The 85% rule applies to all defendants sentenced

pursuant to the Sentencing Reform Act of 1984. 

Of all defendants convicted of a felony offense

during 1993, approximately 96% were sentenced

pursuant to the Sentencing Reform Act.
(b) legally enter the United States but

who subsequently violate a condition 

of their visa, for example, by remaining

in the United States beyond the period

authorized or by committing a criminal

offense.

Criminal aliens are noncitizens who

have been convicted of certain felonies, such as, for example, crimes 

of moral turpitude (like murder, manslaughter, rape), drug trafficking 

offenses, certain firearms offenses, 

or certain offenses relating to national

security.2

By law, noncitizens classified as criminal aliens are deportable once criminal

proceedings against them have been

terminated or after they have completed serving their sentence.

Fifty-five percent of the noncitizens

prosecuted in U.S. district courts were

identified by pretrial service officers as

legal aliens at the beginning of their

prosecution.

Processing illegal aliens

The vast majority of noncitizens entering the United States from 1984 to

1994 were legal aliens  primarily

tourists. While the exact number of illegal aliens in the United States is not

known, INS estimates their number to

be between 3 and 4 million.3

 During a

4-year period beginning October 1988,

the estimated number of illegal aliens

in the United States increased approximately 299,000 per year.4

 INS apprehends and expels more than 1 million

illegal aliens annually. Approximately

97% of those apprehended during

1994 were Mexican nationals intercepted at the border attempting to enter without inspection.5 Additionally,

approximately 5,500 persons were denied entry into the United States for

cause: 47% for prior criminal convictions and 47% for entry without

inspection.6

INS has several options for removing

an illegal alien from the United States.

Fewer than 3% of those apprehended

are actually deported. The most commonly used method for removing an

illegal alien is voluntary return with

safeguards. Under this method, aliens

admit to their illegal status and agree

to leave the United States voluntarily.

Unlike deportation, voluntary departure

does not require adjudication by an immigration judge. Aliens who are voluntarily returned at no expense to the

 Noncitizens in the Federal Criminal Justice System 3

Table 2. Country of citizenship of

noncitizens convicted of an offense

in U.S. district courts, 1994

Country of

citizenship Number Percent

Total 8,594 100.0%

Mexico 4,178 48.6

Colombia 879 10.2

Dominican Republic 493 5.7

Nigeria 340 4.0

Cuba 337 3.9

Jamaica 284 3.3

Canada 188 2.2

China 84 1.0

El Salvador 82 1.0

Vietnam 77 .9

Great Britain 77 .9

Guyana 64 .7

Philippines 59 .7

Venezuela 56 .7

Korea 54 .6

Trinidad 52 .6

Other 1,290 15.0

Notes: Of the 8,784 noncitizens convicted 

in U.S. district courts during 1994, 200 were 

excluded due to missing data describing 

country of origin.

Data source: United States Sentencing Commission, Monitoring data file, annual.

The Immigration and Nationality Act of 1990 authorizes the INS

to apprehend and deport criminal aliens.* The number of criminal aliens living in the United States is unknown. Identification

of criminal aliens who are deportable requires cooperation between the INS and Federal, State, and local law enforcement

agencies. INS generally relies upon these other law enforcement agencies to identify individuals who have come in contact

with the criminal justice system and whom the agencies believe

to be aliens.

While aliens can be identified at different stages of the criminal

justice process, INS tends to concentrate attention on those aliens who have been charged with, or convicted of, a deportable

crime. Once a deportable alien is identified, INS issues a detainer. An alien under an INS detainer is deported after the

criminal proceeding or sentence has been completed. INS reported that nearly 32,000 criminal aliens were deported during

1995.

To address the increasing number of criminal aliens, INS 

developed a comprehensive strategy. INS’s Criminal Alien

Apprehension Program, implemented in 1991, was designed 

(1) to improve INS’s reactive approach to identifying aliens

charged with, or convicted of, a crime, and (2) to develop a

more proactive approach for identifying criminals who are aliens by focusing law enforcement resources in areas of criminal

activity with high concentrations of alien participants.

In addition, INS submits information to the Federal Bureau of

Investigation's National Crime Information Center (NCIC).

NCIC is a national database for information on crime, particularly whether a person is wanted by law enforcement. INS reports information to NCIC on aliens under deportation orders

for previous criminal activity as well as aliens who have entered

the United States without inspection and for whom a warrant of

deportation has been issued. Because these aliens are included in the NCIC system, many apprehensions result from

routine traffic stops or relatively minor offenses. As of March

1994, INS had entered 2,640 aliens into the NCIC database.

Of these 2,640 aliens, 344 were arrested by State and local 

police officers  199 were deported and 8 were placed under 

an INS detainer.

Apprehending and deporting criminal aliens

*See 8 USC § 1252(h).

2

A criminal alien is defined by statute at 8 U.S.C §

1251(a)(2). The statute describes specific 

offenses for which noncitizens can be deported.

3

Robert Warren, “Estimates of the Unauthorized

Immigrant Population Residing in the United

States, by Country of Origin and State of Residence: October 1992,” U.S. Immigration and 

Naturalization Service (April 29, 1994) as cited in

Rebecca L. Clark, Jeffrey S. Passel, Wendy N.

Zimmermann, and Michael E. Fix, Fiscal Impacts 

of Undocumented Aliens: Selected Estimates for

Seven States, The Urban Institute (September,

1994).

4

Warren (1994).

5

United States Immigration and Naturalization

Service, Statistical Yearbook, 1994. 6

INS (1994).
United States are not prohibited from

legally entering at a later time. During

1994 more than 39,000 aliens were

deported and more than 1 million voluntarily departed.7

Under Federal law a deported alien

may not be admitted to the United

States for 5 years after deportation.

Entry by a previously deported alien

within 5 years of deportation is a criminal offense subject to a maximum term

of 2 years' imprisonment.8

 Entry by a

previously deported alien with a criminal history including a drug offense is a

criminal offense subject to a maximum

term of 10 years' imprisonment. Entry

by a previously deported alien with a

criminal history including an aggravated felony is a criminal offense subject to a maximum term of 20 years'

imprisonment.9

 During 1994, 1,450

noncitizens were convicted for illegal

entry into the United States after a previous deportation: 54.8% of these noncitizens had a criminal history including

a drug offense but not including an aggravated felony, and 23.8%, a criminal

history including an aggravated felony.

Characteristics of noncitizens

prosecuted in U.S. district courts

Country of citizenship

Noncitizens convicted of a Federal 

offense during 1994 were from more

than 75 countries. Nearly half (48.6%)

of all noncitizens convicted were from

Mexico (table 2). Additionally, 14.6%

of the noncitizens convicted were from

South America, 14.2% were from the

Caribbean Islands, and 2.2% were

from Canada. (Not all countries are

shown in the table.) 

Demographic characteristics

Most noncitizens prosecuted in U.S.

district courts were from Latin America.

Hispanics comprised 75.7% of noncitizens prosecuted (table 3). Eleven percent of the noncitizens prosecuted

were black non-Hispanic; 7.9% were

white non-Hispanic; and 5.3% were

Asian. Those noncitizens identified as

black were primarily from Nigeria

(31.3%) and Jamaica (29.9%), and

those noncitizens identified as Asian

were primarily from China (16.5%),

Vietnam (15.3%), Korea (11.1%), and

the Philippines (10.3%) (not shown 

in a table).

Among defendants prosecuted in U.S.

district courts, noncitizens tended to 

be younger and less educated than

citizens: 51% of noncitizens were under age 30, compared with 42% of citi4 Noncitizens in the Federal Criminal Justice System

Table 3. Selected demographic characteristics of citizen and noncitizen 

defendants prosecuted in U.S. district courts, 1994

U.S. citizens Noncitizens

Number Percent Number Percent

Totala 32,401 100.0% 10,352 100.0%

Race/ethnicityb

 White 15,998 49.6 814 7.9

 Black 11,121 34.5 1,135 11.1

 Hispanic 4,009 12.4 7,760 75.7

 Otherc 1,119 3.5 548 5.3

Aged 

 Under 19 years 548 1.7% 183 1.8% 

 19 to 20 years 1,719 5.5 457 4.6

 21 to 30 years 11,059 35.1 4,433 44.4

 31 to 40 years 9,132 29.0 3,347 33.5

 41 years or older 9,030 28.7 1,557 15.6

Educational levele

 College graduate 2,805 9.6% 550 7.2% 

 Some college 6,944 23.7 982 12.9

 High school graduate 10,916 37.3 1,593 20.9

 Not high school graduate 8,627 29.5 4,483 58.9

Note: Of the 59,351 defendants prosecuted in U.S. district courts and terminating

pretrial supervision or detention during 1994 data were available for 45,169. An additional 

 2,416 were excluded because of missing data describing citizenship.

a

Includes cases for which demographic characteristics were unavailable.

b

Excludes 95 noncitizens and 154 citizens for whom information describing 

race/ethnicity was unavailable.

c

Noncitizens in the "other" racial group were primarily Asian.

d

Excludes 175 noncitizens and 913 citizens for whom information describing age 

was unavailable.

e

Excludes 2,744 noncitizens and 3,109 citizens for whom information 

describing educational level was unavailable.

Data source: Administrative Office of the U.S. Courts, Pretrial Services Agency. 

Table 4. Criminal history of citizen and noncitizen defendants prosecuted

in U.S. district courts, 1994

U.S. citizens Noncitizens

Number Percent Number Percent

Totala 32,401 100.0% 10,352 100.0% 

No known criminal history 10,707 38.6% 4,975 56.3% 

Prior criminal history

 Misdemeanor only 5,765 20.8% 1,153 13.0% 

 Felony 11,245 40.6 2,714 30.7

 Nonviolent 6,336 22.9 1,891 21.4

 Violent 4,909 17.7 823 9.3

Number of prior convictions

 1 5,582 32.8% 1,444 37.3% 

 2 to 4 7,008 41.2 1,595 41.2

 5 or more 4,420 26.0 828 21.4

Note: Of the 59,351 defendants prosecuted in U.S. district courts and terminating pretrial 

supervision or detention during 1994 data were available for 45,169. An additional 2,416 were

excluded because of missing data describing citizenship.

a

Includes 1,510 noncitizens and 4,684 citizens for whom information describing criminal

history was unavailable.

Data source: Administrative Office of the U.S. Courts, Pretrial Services Agency data file, annual.

7

INS (1994).

8

See, 8 U.S.C. § 1326(a). 9

See, 8 U.S.C. § 1326(b).
zens. (The median age of noncitizens

prosecuted was 30 years; the median

age of citizens was 33 years.) Almost

60% of noncitizens did not have a high

school education, or its equivalent,

compared with less than 30% of

citizens.

Criminal history

Noncitizens prosecuted in U.S. district

courts are less likely to have a known

criminal history than U.S. citizens 

(table 4). Approximately 44% of noncitizens and 60% of U.S. citizens had a

known criminal history. This difference

in criminal histories may be attributable

to incomplete or unavailable records

describing convictions for criminal 

offenses in other countries.

Because of the possibility that a noncitizen will have a foreign arrest and/or

conviction, Federal probation officers

are instructed to request an arrest

check from INTERPOL  the coordinating group for international law

enforcement.10

Of those noncitizens with known criminal histories, less than 30% had a prior

conviction for only a misdemeanor offense: 48.9% had a prior conviction for

a nonviolent felony; and 21.3% had a

prior conviction for a violent felony 

(table 4).

Prosecution of noncitizens

in U.S. district courts

The number of noncitizens whose

cases were terminated in U.S. district

courts tripled from 1984 to 1994 

(table 5). Between 1984 and 1994, the

number of noncitizens increased an

average 10% annually  from 3,462 to

10,352. The number of noncitizens

prosecuted increased at a faster rate

than the overall Federal caseload.

Over the same period the overall Federal caseload (both citizens and noncitizens) increased an average 2%

annually  from approximately 49,000

during 1984 to more than 59,000 during 1994. (BJS, Federal Criminal Case

Processing, 1982-93, NCJ-160088)

The greatest part of the increase in the

number of noncitizens prosecuted 

occurred between 1986 and 1989,

when the number increased by almost

6,000. Since 1989 the number of noncitizens prosecuted has remained fairly

stable. The growth in the number of

 Noncitizens in the Federal Criminal Justice System 5

Table 5. Noncitizens prosecuted in U.S. district courts, 1984-94

Most serious offense charged 1984 1985 1986 1987 1988 1989 1991 1992 1993 1994

Totala 3,462 4,539 4,230 6,215 8,419 10,087 9,583 9,761 10,679 10,352

Violent offenses 88 108 92 116 111 120 142 114 150 144

Property offenses 564 697 744 1,152 1,274 1,541 1,172 1,263 1,463 1,378

 Fraudulent 431 558 594 1,009 1,102 1,356 1,024 1,112 1,279 1,163

 Other 133 139 150 143 172 185 148 151 184 215

Drug offenses 1,204 1,799 1,805 3,287 3,980 4,473 4,182 4,506 5,274 4,633

Public-order offenses 1,406 1,935 1,589 1,660 3,054 3,953 4,087 3,878 3,789 4,177

 Regulatory 49 96 138 178 212 256 207 185 197 173

 Other 1,357 1,839 1,451 1,482 2,842 3,697 3,880 3,693 3,592 4,004

 Immigrationb 1,186 1,636 1,240 1,166 2,474 3,309 3,453 3,183 3,022 3,477

a

Includes cases for which data describing offense charged were unavailable. 

Because of changes in the structure of the Pretrial Services Agency database during 1990, 

data describing defendants processed during 1990 were unavailable.

b

Includes only those noncitizens charged with felonies and class A misdemeanors. Approximately 7,000 

noncitizens are prosecuted annually for class B and C immigration violators  primarily illegal entry. Data source: Administrative Office of the U.S. Courts, Pretrial Services Agency, data file, annual.

1984 1985 1986 1987 1988 1989 1991 1992 1993 1994

0

2,000

4,000

6,000

8,000

10,000

Total

Drug offenses

Public-order offenses

Property offenses

Violent offenses

Number of

defendants

Year

10See, Administrative Office of the U.S. Courts, 

The Presentence Investigation Report, II-58 

(July, 1995).
noncitizens prosecuted between 1986

and 1989 was generally attributable to

an increase in the number of noncitizens charged with drug and immigration offenses.

Drug and immigration offenses account for the majority of the offenses

for which noncitizens are prosecuted.

During 1984 drug and immigration 

offenses accounted for 69% of the 

offenses for which noncitizens were

prosecuted. By 1994 these two offenses accounted for over 78% of

theoffenses for which noncitizens were

prosecuted. 

Noncitizens prosecuted in U.S. district

courts were primarily concentrated in

the judicial districts near the Southwestern border (figure 1, page 6). 

The District of Arizona (15.3% of all

noncitizens prosecuted), the Southern

District of California (10.0%), the

Southern District of Texas (9.4%), the

Western District of Texas (7.2%), the

Central District of California (7.1%),

and the District of New Mexico (4.0%)

together accounted for more than half

of the total noncitizen federal caseload

during 1994. The other judicial districts where a substantial number of

noncitizens were prosecuted included

the following: the Southern District of

Florida (6.8%), the Eastern District of

New York (3.5%), the Southern District

of New York (2.9%), the Eastern District of California (2.2%), and the District of Oregon (2.0%).

Offense committed

Drug offenses

Between 1984 and 1994 the number 

of noncitizens who were charged with

drug offenses and whose cases were

terminated increased at an average 

13% annually  increasing from 1,204

to 4,633 (table 5). The number of noncitizens charged with drug offenses 

increased at a faster rate than the

overall number of Federal drug prosecutions. Over the same period, the

overall number of Federal drug prosecutions increased 7% annually  from

approximately 10,000 during 1984 to

more than 20,000 during 1994. (BJS,

Federal Criminal Case Processing,

1982-93, NCJ-160088)

Noncitizens convicted of a drug offense were primarily involved with the

distribution or importation of cocaine

powder (35.7%), marijuana (34.6%),

and heroin (17.7%) (table 6). Few

(6%) noncitizens were involved with

crack cocaine. 

Among noncitizens convicted of drug

offenses, about 41% involved with 

cocaine powder were sentenced for

having less than 5 kilograms; 62% 

involved with heroin, having less than 

1 kilogram; and 72% involved with

marijuana, less than 100 kilograms.

6 Noncitizens in the Federal Criminal Justice System

Figure 1

 Noncitizens prosecuted in U.S. district courts, 1994

Note: Alaska, Hawaii, the Commonwealth of Puerto Rico, and the U.S. territories are not depicted.

Table 6. Type of drug involved

in drug offenses committed by 

noncitizens sentenced in U.S. 

district courts, 1994

Type of drug Number Percent

Total 4,491 100.0% 

Cocaine powder 1,604 35.7

Crack cocaine 271 6.0

Heroin 793 17.7

Marijuana 1,556 34.6

Methamphetamine 203 4.5

Other 64 1.4

Data source: United States Sentencing 

Commission, Monitoring data fiile, annual.

Number of noncitizens prosecuted

 Fewer than 100

 100 to 500

 500 to 1,000

 1,000 or more
These drug quantities correspond to

the minimum quantity necessary to invoke a 10-year mandatory minimum

sentence.11 

Few data are available describing the

defendant’s role in a drug offense, as,

for example, whether the defendant

was a dealer or a “mule” or “courier.”

However, the available data indicate

that noncitizens were more likely than

citizens to have played a minor role in

drug offenses. Approximately 29% of

the noncitizen Federal drug defendants

who were convicted received a downward sentencing adjustment for a “mitigating role,” compared with 14% of

U.S. citizen drug defendants (not

shown in a table). 

Additionally, noncitizen Federal inmates identifying themselves as being

involved in drug conspiracies were

more likely than citizens to describe

their role as low-level: approximately

69% of noncitizens compared with

56% of U.S. citizens, identified their

role in the drug offense as low-level.

(BJS, Comparing Federal and State

Prison Inmates, 1991, NCJ-145864)

Immigration offenses

Between 1984 and 1994 the number of

noncitizens who were charged with an

immigration offense and whose cases

were terminated increased an average

10% annually  from 1,186 to 3,477

(table 5).

Noncitizens prosecuted for an immigration offense are typically charged

with illegally reentering the United

States. Although any illegal entry into

the United States is a criminal offense,

illegal entry cases are rarely prosecuted unless the noncitizens had made

multiple illegal entries.

Illegal reentry into the United States is

a criminal offense if the noncitizen was

previously deported by INS for illegally

entering the United States or for being

a criminal alien. Illegal reentry by a

noncitizen who had previously been

deported is a criminal offense subject

to a maximum penalty of 2-years'

imprisonment.12 Illegal entry by a noncitizen who is a criminal alien (as defined by statute) is a criminal offense

subject to a maximum penalty of

10-years' imprisonment, or 20-years'

imprisonment if the noncitizen was previously convicted of an aggravated

felony.13 Approximately 67% of noncitizens convicted of an immigration offense were convicted of illegally entering the United States or reentry after

deportation (table 7).

Of those noncitizens convicted of illegally entering the United States, 78.6%

had a prior criminal conviction: 54.8%

had a prior conviction for a criminal offense other than an aggravated felony,

and 23.8% had a prior conviction for

an aggravated felony (not shown in a

table).

Smuggling, transporting, or harboring

illegal aliens is a criminal offense 

subject to a maximum penalty of 10

years' imprisonment for each alien

smuggled.14 During 1994, 18.7% of

the noncitizens convicted of an immigration offense were convicted of alien

smuggling. Of those noncitizens convicted of alien smuggling, 26.4% were

sentenced for smuggling fewer than 6

aliens; 49.2%, for smuggling between

6 and 24 aliens; 16.8%, for between 25

and 99 aliens; and 7.7%, for 100 or

more aliens (not shown in a table). 

Other offenses

Apart from drug and immigration offenses, noncitizens were generally not

prosecuted for other criminal conduct

within Federal jurisdiction. During

1994, 1.4%, 13.3%, and 6.8% of noncitizens were prosecuted for violent 

offenses, property offenses, and

public-order offenses other than immigration offenses, respectively (table 5).

Disposition

Of the noncitizens adjudicated in U.S.

district courts during 1994, 87.3% were

convicted (not shown in a table). Of

those noncitizens convicted, 92.3%

pleaded guilty to the offense charged

and 7.6% were convicted at trial. Of

the 12.7% who were not convicted, the

charges were dismissed in 91.3% of

the cases, and the defendant was acquitted at trial in 8.7% of the cases.

Sanctions imposed

During 1994, 87.9% of noncitizens

convicted of a Federal offense received a sentence that included a term

of imprisonment; 11% received a sentence of probation (including probation

imposed in conjunction with community

 Noncitizens in the Federal Criminal Justice System 7

Table 7. Type of immigration offense committed by noncitizens 

sentenced in U.S. district courts, 1994

Type of drug Number Percent

Total 2,182 100.0% 

Illegal entry or re-entry 1,450 66.5

Harboring, transporting, or smuggling noncitizens 409 18.7

Trafficking in, or acquiring, fraudulent passports 52 2.4

Trafficking in, or acquiring, fraudulent entry documents 271 12.4

Data source: United States Sentencing Commission, Monitoring data file, annual.

Table 8. Sentence imposed 

on noncitizens in U.S. district

courts, 1994

Type of sentence

imposed Number Percent

Total 8,766 100.0% 

Imprisonment only 7,532 85.9

Split sentence 171 2.0

Probation only 676 7.7

Probation with

 community 

 confinement 290 3.3

No prison or

 probation 97 1.1

Notes: Of the 8,794 noncitizens convicted 

in U.S. district court during 1994, 28 were 

excluded due to missing data describing the

type of sentence imposed.

Data source: United States Sentencing 

Commission, Monitoring data file, annual.

12See, 8 U.S.C. § 1326(a). 13See, 8 U.S.C. § 1326(b). According to statute,

an aggravated felony means murder; any illicit

trafficking in controlled substances; any illicit trafficking in any firearms or destructive devices; any

offense relating to the laundering of monetary instruments; a fraud involving a loss of $200,000 or

more; or any crime of violence for which a term 

of imprisonment imposed was at least 5 years 

(8 U.S.C. § 1101(a)(43)).

14See, 8 U.S.C. § 1324(a).

11See, 21 U.S.C. § § 841(a) and 960(a). Proportions of noncitizens subject to a mandatory 

minimum sentence are presented in table 10 

on page 8.
confinement);15 and 1.1% received a

sentence that included neither imprisonment nor probation (table 8).

Noncitizens received prison sentences

with an average term of 50.1 months

(table 9). Noncitizens convicted of violent offenses and drug offenses received the longest prison sentences,

with an average of 81.1 months and

69.9 months, respectively. Noncitizens

convicted of immigration offenses 

received prison sentences with an 

average term of 22.6 months.

The Anti-Drug Abuse Act of 1986 

requires that defendants convicted of

distributing or importing controlled substances be sentenced to a mandatory

minimum 5- or 10-year term of imprisonment depending upon the quantity 

of drugs involved.16 Almost 60% of the

noncitizens convicted of a drug offense

during 1994 were subject to a mandatory minimum prison sentence: 0.3%

were subject to a mandatory minimum

of 1 year; 25.4% were subject to a

mandatory minimum of 5 years; and

32.4% were subject to a mandatory

minimum of 10 years or more (table

10).17

Departures from the Federal 

sentencing guidelines

Approximately 27% of the noncitizens

sentenced during 1994 received a departure from the applicable sentencing

range established by the Federal sentencing guidelines (table 11). The

most common reason cited for departing from the guidelines was substantial

assistance to the Government: 16.3%

of noncitizens sentenced received a

substantial assistance departure. 

(A substantial assistance departure is

awarded when the defendant assists

the Government in the prosecution or

investigation of another individual.18) 

Almost 10% received a downward 

departure for reasons other than substantial assistance and less than 1%

received an upward departure. The

most frequently cited reason for the

"other" downward departures was "pursuant to a plea agreement"; the most

frequently cited reasons for the upward

departures were the defendant's extensive criminal history and the large

quantity of drugs (not shown in a

table).

8 Noncitizens in the Federal Criminal Justice System

Table 10. Noncitizen drug defendants

sentenced in U.S. district courts 

subject to a mandatory term of 

imprisonment, 1994

Number Percent

Total 4,491 100.0% 

No mandatory minimum 

 applicable 1,881 41.9% 

Mandatory minimum 

 applicable 2,610 58.1% 

 Minimum of 1 year 13 .3

 Minimum of 5 years 1,140 25.4

 Minimum of 10 years 

 or more 1,457 32.4

Data source: United States Sentencing Commission, Monitoring data file, annual.

Table 11. Noncitizens sentenced in U.S. district courts who 

received a departure from the Federal sentencing guidelines, 1994

Departures

Downward

Most serious Number of No Substantial

offense of conviction defendants departure Upward assistance Other

Total 8,125 73.4% .8% 16.3% 9.5% 

Violent offenses 89 75.3% 2.2% 9.0% 13.5% 

Property offenses 1,070 83.8% .7% 11.4% 4.0% 

 Fraudulent 903 84.5 .4 11.2 3.9

 Other 167 80.2 2.4 12.6 4.8

Drug offenses 4,181 62.3% .7% 25.4% 11.6% 

Public-order offenses 2,774 85.9% 1.0% 4.6% 8.4% 

 Regulatory 116 79.3 0 11.2 9.5

 Other 2,658 86.2 1.1 4.3 8.4

 Immigration 2,022 89.7 1.1 1.2 8.0

Note: Of the 8,794 noncitizens convicted in U.S. district courts during 1994, 

669 were excluded due to missing data describing departure status.

Data source: United States Sentencing Commission, Monitoring data file, annual.

17Pursuant to 21 U.S.C. §§ 859, 860, and 861, 

defendants convicted of employing a minor or distributing drugs to pregnant women or near schools

are subject to a 12-month mandatory minimum

term of imprisonment.

18See, 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.

Table 9. Imprisonment imposed on noncitizens sentenced 

in U.S. district courts, 1994

Most serious Number of Prison term imposed

offense of conviction defendants Mean Median

Total 7,647 50.1 mos. 27 mos.

Violent offenses 96 81.1 52

Property offenses 689 14.2 10

 Fraudulent 581 13.5 10

 Other 108 17.6 12

Drug offenses 4,283 69.9 51

Public-order offenses 2,579 25.6 21

 Regulatory 62 11.0 6

 Other 2,577 26.6 24

 Immigration 1,978 22.6 21

Note: Of the 7,703 noncitizens convicted in U.S. district courts during 1994 who

received a sentence that included a term of imprisonment, 11 were excluded because 

of missing data describing the term of imprisonment and 45 were excluded because 

the defendant received a sentence of life imprisonment. 

Data source: United States Sentencing Commission, Monitoring data file, annual.

16See, Pub. L. No. 99-308 100 Stat 449 as codified, in relevant part, at 21 U.S.C. §§ 841 and 960. 15Sentences of community confinement include

home detention, work release, and intermittent

confinement. (See, U.S.S.G., § 5C1.1)
Noncitizens convicted of drug offenses

were more likely to receive a departure

from the Federal sentencing guidelines

than noncitizens convicted of other 

offenses. Over a third of noncitizen

drug defendants received a departure

from the Federal sentencing guidelines: 25.4% of drug offenders received a substantial assistance

departure; 11.6% received a downward departure for reasons other than

substantial assistance; and 0.7% received an upward departure (table 11).

Impact of noncitizens on the 

Federal prison population

Between 1984 and 1994, the number

of noncitizens serving a sentence of

imprisonment in a Federal prison (or

contract facility) increased an average

15% annually  from 4,088 to 18,929

(table 12). The number of noncitizens

incarcerated increased at a faster rate

than the overall Federal prison population. Over the same period, the overall

Federal prison population increased an

average 10% annually  from 31,105

during 1984 to 87,437 during 1994.

(BJS, Compendium of Federal Justice

Statistics, annual, NCJ-160089)

During 1994, 75% of noncitizens serving a sentence of imprisonment were

convicted of a drug offense; 13% were

convicted of an immigration offense;

and less than 2% were convicted of a

violent offense. At the expiration of

their sentences, those noncitizens

identified as criminal aliens are

deported.19 Additionally, pending review by an immigration judge, many of

the other noncitizens incarcerated may

be required to depart from the United

States upon release because they either entered the United States illegally

or violated the terms of their

admittance.20 

The increase in the number of noncitizens incarcerated reflects a general increase in imprisonment imposed 

especially for drug offenders  and

changes in time-served requirements.21

In addition to establishing the Federal

sentencing guidelines, the Sentencing

Reform Act of 1984 requires that defendants sentenced to a term of imprisonment must serve at least 85% 

of the imposed sentence before being

released.22 

For example, a noncitizen sentenced

to the average term of 50 months

could expect to serve at least 44

months before release. Similarly, a

noncitizen convicted of a drug offense

and sentenced to the average term of

70 months could expect to serve at

least 61 months before being released.

Given the increase in the number of

noncitizens convicted and the timeserved requirements, the number of

noncitizens incarcerated in the Federal

prisons is expected to continue to increase over the next 10 years. The

Federal Bureau of Prisons projects that

the increase will be approximately 4%

annually over the next 10 years, increasing from 18,929 incarcerated 

during 1994 to more than 28,000 in

2005.23 Preliminary data for 1995 

indicate that the number of noncitizens

serving a sentence in a Federal prison

(or contract facility) was 21,421 as of

September 30, 1995.

 Noncitizens in the Federal Criminal Justice System 9

23Eric Simon, Chief, Public Policy and Applied 

Research, United States Department of Justice,

Bureau of Prisons (March 14, 1996).

 

Table 12. Noncitizens serving a sentence of imprisonment in a Federal prison, 1984-94

Most serious Noncitizen Federal prison inmates 

offense of conviction 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994

Total* 4,088 5,561 6,966 7,851 8,871 10,658 12,349 14,046 16,117 18,218 18,929

Violent offenses 290 298 329 349 338 313 298 270 295 316 343

Property offenses 228 357 483 507 497 509 541 592 622 622 658

 Fraudulent 144 245 327 363 369 376 411 459 482 479 522

 Other 84 112 156 144 128 133 130 133 140 143 136

Drug offenses 2,270 3,111 4,099 4,978 5,948 7,647 9,284 10,817 12,706 14,012 14,226

Public-order offenses 1,251 1,740 2,003 1,967 2,049 2,125 2,154 2,285 2,431 3,197 3,614

 Regulatory 69 82 95 118 109 96 104 110 100 108 95

 Other 1,182 1,658 1,908 1,849 1,940 2,029 2,050 2,175 2,331 3,089 3,519

 Immigration 872 1,275 1,469 1,345 1,363 1,542 1,515 1,549 1,568 2,118 2,478

Note: Data represent the Federal prison population on December 31.

*Includes cases for which the offense category could not be determined.

Data source: United States Department of Justice, Bureau of Prisons, 

SENTRY System data file, annual.

19See, 8 U.S.C. § 1252a. 20See, 8 U.S.C. § 1251. 21See generally, Bureau of Justice Statistics, 

Federal Criminal Case Processing, 1982-93

(1996).

22See, Pub. L. No. 98-473 §§ 211-239 98 Stat

1837 as codified, in relevant part, at 18 U.S.C. §

3624(b). Pursuant to the Sentencing Reform Act,

Federal inmates serving a sentence of more than

1 year (but not life imprisonment) can earn up to

54 good conduct days per year served.
10 Noncitizens in the Federal Criminal Justice System

A study by the Urban Institute estimated that approximately 86% of the illegal aliens living in the United

States are concentrated in seven states: Arizona

(1.7%), California (42.6%), Florida (9.5%), Illinois

(5.2%), New Jersey (3.4%), New York (13.2%), and

Texas (10.6%). The Institute estimated that 2.8% 

of the combined population of these States are illegal

aliens.1

 

Reacting to a perceived increase in the costs of social

services and public education for illegal aliens, during

1994 California enacted legislation prohibiting illegal 

aliens from receiving such social services.2

 Under the

California law, individuals may not receive public social

services until their legal status has been verified as (1)

a citizen of the United States, (2) an alien lawfully admitted as a permanent resident, or (3) an alien lawfully

admitted for a temporary period.3

 

As a response to costs incurred by States for incarcerating illegal aliens, the Immigration Reform and Control

Act of 1986 authorized the Attorney General to reimburse the States for some of those costs.4

 The Violent

Crime Control and Law Enforcement Act of 1994 expanded the reimbursement program to include local 

jurisdictions and to provide the U.S. Attorney General

the option of incarcerating a State's illegal aliens in

Federal prisons if a State were unable to incarcerate

these aliens due to inadequate facilities or lack of

space.5

Congress first appropriated funds for this program (the

State Criminal Alien Assistance Program) for fiscal year

1995. As part of the fiscal year 1995 appropriation for

the Department of Justice, Congress appropriated $130

million for reimbursement to the States.6

 For fiscal year

1996, Congress appropriated $300 million for reimbursement to the States. Additionally, the President’s

fiscal year 1997 budget requested $330 million for the

State Criminal Alien Assistance Program.

7 

Under the State Criminal Alien Assistance Program, the

Department of Justice’s Bureau of Justice Assistance

awarded $128.7 million to 45 States during fiscal year

1995 to help defray the costs of incarcerating 38,000

illegal aliens. California, which was reimbursed for

more than 18,000 illegal alien inmates, received almost

50%, or $64 million, of the $130 million appropriated by

Congress. Six other States received approximately

38% of the remaining funds awarded.

A greater proportion of noncitizens in State prisons

(35.1%) than in Federal prisons (1.9%) were convicted 

of violent offenses, according to the BJS Survey of 

Inmates in State Correctional Facilities, 1991. In both

systems, noncitizens convicted of drug offenses comprised a large proportion of the convicted noncitizen

population.

Noncitizens in State correctional facilities

State Criminal Alien Assistance Program

awards, fiscal year 1995

State

Reimbursable

inmates 

Total cost

to Statea

(in millions)

Awardb

(in millions)

All applicants 37,679 $796 $129

Seven States with the highest number of illegal aliens

California 18,593 $396 $64

Texas 6,228 105 17

New York 2,390 83 13

Florida 2,323 41 7

Illinois 1,445 27 4

Arizona 1,384 23 4

New Jersey 601 18 3

a

Represents average cost per inmate multiplied by the number 

of inmates for whom the State was eligible for reimbursement.

b

Represents the FY 1995 appropriation less 1% or 

administrative costs.

Source: U.S. Department of Justice, Bureau of Justice Assistance.

Current offense of sentenced noncitizens 

in Federal and State prisons, 1991

Current offense Federal State

Violent offenses 1.9% 35.2%

Property offenses 2.4 13.0

Drug offenses 85.1 45.2

Public-order offenses 7.4 6.6

Other 3.3 5.1

 Number of noncitizen inmates 9,916 30,718

Notes: Excludes 159 noncitizens (49 in Federal 

prisons and 110 in State prisons) for whom the 

current offense was unavailable.

Source: 1991 Survey of Inmates in State and Federal 

Correctional Facilities.

1

Rebecca L. Clark, Jeffrey S. Passel, Wendy N. Zimmermann 

and Michael E. Fix, Fiscal Impact of Undocumented Aliens:

Selected Estimates for Seven States, The Urban Institute 

(September 1994).

2

CAL WELF. & INST. CODE § 10001.5 (1994). 3

CAL. WELF. & INST. CODE § 10001.5(b) (1994). 4

8 U.S.C. § 1365.

5

See, Pub. L. No. 103-322 108 Stat 1823 as codified at 8 U.S.C. § 1252(j).

6

See, Pub. L. No. 103-317 108 Stat. 1724, 1778 (1994). 7

Office of the President, Budget of the United States Government 

Fiscal Year 1997, Appendix, p. 665. Additional funds may 

also be transferred from the State corrections programs to the 

State Criminal Alien Assistance Program. 
Methodology

The primary source of the data for 

tables presented in this report is the

BJS Federal Justice Statistics Program

database. The FJSP database is

presently constructed from source files

provided by the Executive Office for

United States Attorneys, the Administrative Office of the United States

Courts, the United States Sentencing

Commission, and the Federal Bureau

of Prisons. The Administrative Office

of the U.S. Courts also maintains the

data collected by the Pretrial Services

Agency. Data tabulations, except

where otherwise indicated, were prepared from BJS staff or contractor

analysis of source agency datasets.

The offense categories used in this 

report are based primarily on the offense codes established by the Administrative Office of the U.S. Courts. The

Compendium of Federal Justice Statistics (NCJ-160089) provides a detailed

description of the United States Criminal Code titles and sections included in

each offense category.

In tables 3-5 and figure 1, the data 

describing noncitizens prosecuted

were derived from the database maintained by the Pretrial Services Agency.

Unlike other FJSP tabulations of 

defendants in cases terminated, table

5 relies upon data from the Petrial

Services Agency rather than the criminal court data file. Therefore, table 5

and other FJSP tables reporting defendants in case terminated may not

be directly comparable.

The Pretrial Services Agency maintains data describing criminal defendants adjudicated in U.S. district courts

who were processed by Federal pretrial services officers. Not all defendants prosecuted in U.S. district court

are interviewed by a Federal pretrial

services officer  some defendants

refuse to be interviewed and, in some

districts, pretrial services officers are

not required to interview every 

defendant. 

In the Pretrial Services Agency 

database, information describing 

citizenship status was available for 

approximately 95% of the defendants

processed during a given year. Because of changes to the structure of

the Pretrial Services Agency database

during 1990, data describing defendants processed during 1990 were

unavailable.

In tables 2 and 6-11, the data describing convicted noncitizens were derived

from the database maintained by the

United States Sentencing Commission.

The Commission maintains data describing those defendants convicted 

in U.S. district courts and who were

sentenced pursuant to the Federal

sentencing guidelines. In the Commission’s database, data describing citizenship status were available for over

97% of the defendants sentenced during calendar year 1994 and included 

in the Commission’s database.

In table 12 the data describing imprisoned noncitizens were derived from

the database maintained by the Federal Bureau of Prisons. The Bureau 

of Prisons maintains data describing all

persons who were committed to Federal prison to serve a sentence of imprisonment. In the Bureau of Prisons’

database, information describing citizenship status was available for over

98% of the inmates incarcerated during a given year.

In the section entitled Noncitizens in

State Correctional Facilities, the data

were derived from the Bureau of Justice Statistics' 1991 surveys of inmates

in State and Federal correctional

facilities.

 Noncitizens in the Federal Criminal Justice System 11

The Bureau of Justice Statistics is

the statistical agency of the U.S. 

Department of Justice. Jan M.

Chaiken, Ph.D., is director.

BJS Special Reports address a special topic in depth from one or more

datasets that cover many topics.

John Scalia of the Bureau of Justice

Statistics wrote this report. William

J. Sabol of the Urban Institute and

Kevin Strom of BJS provided statistical review. Tom Hester, Tina Dorsey, and Yvonne Boston edited the

report. Marilyn Marbrook, assisted

by Jayne Robinson, administered

production.

The Immigration and Naturalization 

Service reviewed this report. 

John Bjerke of the Statistical 

Division provided comments.

The projection of the number of noncitizens incarcerated in the Federal

prisons was provided by Eric Simon,

Chief, Public Policy and Applied 

Research, of the Bureau of Prisons.

The estimate was derived using the

Bureau’s prison population projection model, FEDSIM.

August 1996, NCJ-160934

Data presented in this report may be

obtained from the National Archive of

Criminal Justice Data at the University of Michigan, 1-800-999-0960.

The report and data are also available on the Internet:

hhtp:/www.ojp.usdoj.gov/bjs/