Immigration Enforcement: Immigration-Related Prosecutions Increased from 2017 to 2018 in Response to U.S. Attorney General's Direction
Released: 2019-12-03T00:00:00

Letter

Background

Federal Prosecution Roles and Immigration-Related Offenses

DHS, DOJ, and the federal judiciary have different roles in the federal criminal process for immigration-related prosecutions, as shown in table 1.

For this report, we define immigration-related offenses as the offenses listed in the Attorney General’s April 2017 memorandum (see table 2).

Immigration-Related Prosecutions on the Southwest Border

Criminal prosecution process. DHS and DOJ officials told us that DHS’s practices for referring cases for prosecution, and DOJ’s practices for prioritizing immigration-related prosecutions, vary by location along the southwest border. In general, individuals are prosecuted in the judicial district that corresponds with the location of their alleged criminal offenses. Each USAO prosecutes cases in one or more courts. USAOs coordinate with DHS and DOJ components, as well as the federal courts, to determine the types and number of cases, including immigration- related cases, each office will prosecute, according to DOJ officials. In particular, according to DOJ’s Principles of Federal Prosecution, the prosecutor has wide latitude in determining when, whom, how, and whether to prosecute for apparent violations of federal criminal law, and this broad discretion has been recognized on numerous occasions by the courts. Border Patrol officials on the southwest border told us that they receive training from the USAOs about the criminal prosecution process and that they use the prosecution priorities established by the USAO to determine whether to refer a case for criminal prosecution. In general, immigration-related cases referred to the USAO by Border Patrol follow the process described in figure 2.

One-day prosecutions. In three federal judicial districts on the southwest border—Arizona, Texas Southern, and Texas Western—DOJ prosecutes defendants for improper entry in criminal proceedings that generally last one day or less, or one-day prosecutions (see figure 2). The volume of defendants prosecuted for improper entry per day in these districts varies depending on the volume of Border Patrol apprehensions and capacity limitations, among other things.

Timeline of Attorney General Memoranda and Related Guidance

Since 2017, there have been several federal directives related to DOJ’s prioritization of immigration-related prosecutions. They are summarized in table 3.

DOJ Prioritized Immigration-Related Prosecutions in 2017 and 2018, Particularly by Increasing One- Day Improper Entry Prosecutions

Beginning in April 2017, DOJ, in Coordination with DHS and Other Stakeholders, Prioritized Immigration-Related Cases

Prosecutors in all five southwest border USAOs told us that, in response to the Attorney General’s 2017 directive and in coordination with DHS and other stakeholders, they took steps to prioritize immigration-related prosecutions in their respective jurisdictions. According to officials from the Office of the Attorney General, each USAO exercised its discretion in implementing the priorities identified in the memorandum. For example, some USAOs changed the threshold at which they would accept a prosecution referral for alien smuggling or illegal reentry. Officials in one USAO told us that, before the April 2017 memorandum, their office generally declined to prosecute alien smuggling cases involving fewer than six smuggled aliens. However, in response to the April 2017 memorandum, the office lowered its threshold to two smuggled aliens. Officials in another USAO said that in light of the April 2017 memorandum, they began accepting all referred illegal reentry cases that met the evidentiary standard. Previously, this office did not accept more than 150 illegal reentry defendants without a prior felony conviction per month.

In particular, in response to the memoranda, all five USAOs along the southwest border prioritized improper entry referrals for prosecution. Some districts that were already prosecuting some improper entry cases, such as Arizona, were able to quickly increase such prosecutions by scaling their existing systems, according to USAO officials. Specifically, USAO officials in Arizona stated that their office began accepting referrals for first time improper entrants without aggravating circumstances in May 2017, in response to the April 2017 memorandum.

In comparison, other USAOs created new processes to prosecute more improper entry cases because they were not previously accepting a significant number of such referrals. For example, prior to the Attorney General’s April 2017 memorandum, the USAO in the California Southern district did not prioritize the prosecution of improper entry cases. USAO officials in San Diego stated that in the spring of 2017, the USAO formed an immigration enforcement working group comprised of certain federal law enforcement entities in San Diego, including USMS, Border Patrol, and CBP OFO, to discuss potential actions the district might take to prioritize immigration enforcement. In May 2018, the Chief Judge in California Southern convened a criminal case management committee comprised of district and magistrate judges, court officials, USAO officials, USMS officials, and federal defenders, among others, to “identify and resolve problems” related to the increased prosecution of improper entry cases. These working groups collaborated to make decisions on issues such as the volume of improper entry cases the court could hear each day, how defendants in improper entry cases would meet with their attorneys, and how many defendants a public defender would represent in court each day. In July 2018, the San Diego court initiated a daily docket for misdemeanor improper entry cases.

Regarding DOJ’s coordination with DHS, in four of the five southwest border districts, USAO officials told us that they informed local DHS partners, including local Border Patrol and OFO leadership, that their prosecution guidelines had changed in light of the 2017 memorandum and that they would accept more immigration-related cases for prosecution. As a result, Border Patrol and OFO referred more immigration-related cases to DOJ. Further, in response to the April 2018 zero-tolerance memorandum, Border Patrol issued guidance to all southwest border sectors instructing each sector to develop phased plans to refer all amenable apprehended adults to the USAO for improper entry prosecution, based on capacities of the USAO and the federal courts, and the sectors developed and implemented these plans. In general, these plans prioritized referrals of those individuals with a criminal history first, followed by those with no criminal history. For example, the plan for the Rio Grande Valley Border Patrol Sector stated that, incrementally, the Sector would increase prosecution referrals until attaining 100 percent prosecution on a timeline consistent with DOJ partners’ capacity.

Regarding DOJ’s coordination with other stakeholders in the federal criminal process, including the federal courts, USMS, and public defenders, USAO officials told us that they coordinated at the local level to be able to increase immigration-related prosecutions, to the extent practicable. In particular, the federal judiciary held a border court conference in June 2018 and established a task force—including judges, public defenders, and DHS and DOJ representatives—to discuss issues related to changing prosecution priorities in southwest border districts. The task force met three times between July 2018 and April 2019.

In addition, stakeholders told us they took other steps to accommodate the USAOs’ prioritization of such prosecutions. For example,

Some courts added additional daily dockets or court sessions, or adjusted their use of facilities to accommodate the higher volume of cases being prosecuted. Court officials and magistrate judges we spoke with in all five southwest border districts told us that magistrate judges spent more time presiding over improper entry cases as the number of those cases increased. In McAllen, Texas, for example, court and USAO officials told us that the court added a second daily docket for misdemeanor improper entry cases in May 2018, and doubled the court’s capacity to hear such cases. In Las Cruces, New Mexico, court officials told us that there is one magistrate judge on duty each day for the docket that includes improper entry cases. Federal defenders in Las Cruces told us that stakeholders in Las Cruces, including the court, federal defenders, and USMS, met in spring 2018 and decided to use a second courtroom for magistrate judge duty—including improper entry cases—each day. One courtroom is used for an active proceeding while the other is used to meet and counsel defendants prior to their active court proceeding.

In some locations, FDO told us that they developed new practices to provide representation to each defendant appearing in court. For example, the Federal Defender office in McAllen developed an “all hands on deck” process in May 2018, in which all available defenders meet individually with defendants in the courtroom before their initial appearance in court each day. In October 2018, we observed 14 Assistant Federal Public Defenders in McAllen meet with about 72 defendants during the hour before court; federal defenders we spoke with in McAllen said that the process we observed is their daily routine. In San Diego, federal defenders told us that in July 2018, they assigned a team to work full-time on improper entry cases. The team included six trial attorneys, two appellate attorneys, two legal assistants, two investigators, and one interpreter. The courts also increased their use of private defense attorneys appointed under the Criminal Justice Act and interpretation services due to the increased number of immigration-related cases.

DOJ Increased Prosecutions of One-Day Improper Entry Cases in 2018, and Improper Entry Case Practices Varied Across Districts

Several USAO districts were able to quickly increase the number of improper entry prosecutions in response to the Attorney General’s 2017 and 2018 memoranda, to the extent practicable, because such misdemeanor cases are less resource-intensive and less complicated to prosecute than felonies such as illegal reentry or alien smuggling, according to USAO officials in all five southwest border districts. Specifically, many improper entry cases were completed in one-day court proceedings in fiscal year 2018, and in some locations, the cases of 75 or more improper entry defendants were completed each day during a single court proceeding.

In three of the five USAO districts—Arizona, Texas Southern, and Texas Western—improper entry prosecutions in fiscal year 2018 generally took place in one-day court proceedings. Based on our analysis of DOJ data, about 84 percent of the 62,000 improper entry cases filed in fiscal year 2018, or about 52,000 improper entry cases, took place in these three districts. We observed proceedings in Arizona and Texas Southern in July and October of 2018, respectively. These proceedings lasted approximately two hours, during which time 50 to 75 improper entry prosecutions were completed. In these proceedings, the initial hearing, presentation of evidence, plea, and sentencing took place during a single day—or a single morning or afternoon—in court. On the basis of our observations in Arizona and Texas Southern, as well as interviews with agency officials in Arizona, Texas Southern, and Texas Western between July 2018 and November 2018, first-time offenders without a prior criminal history typically pled guilty to the improper entry offense and were sentenced to time served. Those defendants remained in the custody of the arresting agency for the duration of the criminal court proceeding, according to Border Patrol and USMS officials at headquarters and agency officials in these three districts. At the time of our visits to the Arizona and Texas Southern districts, we observed judges sentence some defendants with a prior improper entry conviction to terms of imprisonment ranging from 10 to 180 days. The judge remanded these defendants to USMS custody to serve their sentence.

In the other two USAO districts—California Southern and New Mexico— most improper entry prosecutions took place over the course of approximately one week, based on our observations of such prosecutions in California Southern and interviews with agency officials in California Southern and New Mexico in October and November 2018. Based on our analysis of DOJ data, about 16 percent of improper entry cases filed in fiscal year 2018, or about 10,000 cases, took place in these districts. After an initial appearance in court, the judge remanded the defendant to USMS custody and set a subsequent hearing for three to four days later. At the second hearing, the defendant typically pled guilty to the improper entry offense and the judge sentenced them. First-time offenders typically pled guilty to the improper entry offense and were sentenced to time served.

The USAOs’ ability to increase improper entry prosecutions was also affected by different practices in the federal criminal process for improper entry cases in each of the five southwest border districts, as shown in table 4. In some locations, these practices affected the extent to which prosecutors could accept all improper entry cases referred for prosecution. According to officials from the Offices of the Attorney General and the Deputy Attorney General, DOJ contemplated such variation in its directives to federal prosecutors. Further, according to agency officials, practices for improper entry cases may change over time, depending on the priorities of various stakeholders in the federal criminal process, physical space limitations, or availability of resources such as interpreters, among other reasons.

As of November 2018, Border Patrol referred nearly all single adults who could be charged with improper entry to the USAOs for prosecution in some districts, according to Border Patrol officials and Border Patrol’s operational guidance in those districts. In these locations, officials from Border Patrol, USAO, and the federal judiciary told us that they had sufficient capacity to process all such cases. In other districts, Border Patrol referred a lower percentage of single adults for prosecution for improper entry based on the ability of the USAO to accept such referrals or other factors, consistent with DHS’s May 2018 memorandum. For example, in Tucson, Arizona, the court generally allowed 75 improper entry cases per day at the time of our July 2018 visit. However, in McAllen, Texas, court officials told us that the court would hear as many improper entry cases as the USAO accepted for prosecution, which was as many as 200 cases per day, as of our October 2018 visit. At the time of our visits in July and October 2018, other considerations affecting the number of improper entry prosecutions included Border Patrol’s capacity to process case referrals (Texas Southern), restrictions on the number of daily defendants that the court could accommodate (Arizona, California Southern), and physical constraints, such as the number of seats for defendants in the courtroom (Texas Southern).

In addition, public defense practices for misdemeanor improper entry cases varied across districts and, in some locations, affected the number of improper entry cases that the USAO could file each day. In California Southern and Arizona, each public defender represented a maximum of 4 or 6 defendants in court each day, respectively, in October 2018 and July 2018. In Texas Southern, one public defender may represent up to 100 defendants in court at a time, as of October 2018, according to defender office staff. Furthermore, local court rules or practices in some locations affected the number of improper entry cases that Border Patrol could refer or the USAO could file each day. For example, in California Southern, as of October 2018, the court required defendants to appear in court the next court day after their arrest. In addition, all defendants were required to undergo a medical screening for tuberculosis before their initial appearance in court.

DHS Referred, and DOJ Prosecuted, More Immigration- Related Cases in Fiscal Year 2018 than in Each of the Four Prior Fiscal Years

Border Patrol Referred More Cases to DOJ for Prosecution in Fiscal Year 2018 than in Each of the Four Prior Fiscal Years, and the Number of Referrals Varied by Location

Border Patrol data indicate that the number of single adults referred to USAOs for prosecution more than doubled from fiscal year 2017 (about 49,700) to fiscal year 2018 (about 101,000), and was higher in fiscal year 2018 than in each of the four prior fiscal years. The total number of single adults Border Patrol apprehended varied from year to year over this time and Border Patrol data indicate that fewer single adults were apprehended in both fiscal years 2017 and 2018 than in each of the three prior fiscal years. However, the proportion of apprehended single adults that Border Patrol referred for prosecution was higher in fiscal year 2018 (38 percent) than in each of the four prior fiscal years (ranging from 20 to 24 percent) (see fig. 3).

On the basis of our analysis of Border Patrol data, USAOs declined approximately 8 percent of Border Patrol’s criminal prosecution referrals in fiscal year 2018. In the four prior fiscal years, USAOs declined between 2 and 4 percent of such Border Patrol referrals. However, in fiscal year 2018, the number of cases Border Patrol referred for prosecution—and the number of cases that were accepted and prosecuted by USAOs—was also substantially higher compared to prior years, which was consistent with DHS and Border Patrol guidance to increase prosecution referrals to the extent practicable and consistent with DOJ partners’ and federal court capacity. The reasons for declinations varied and included timing and capacity-related reasons, according to Border Patrol’s data and officials. For example, defendants must generally appear before a judge within 48 hours of their Border Patrol apprehension and, according to Border Patrol officials, the remote locations of some apprehensions can make it difficult for Border Patrol to process, transport, and present defendants in court within the required timeframe.

Border Patrol data indicate that apprehensions of single adults in fiscal year 2018 varied by U.S. Attorney district and, in general, Border Patrol referred a greater proportion of those apprehended for prosecution in districts with a relatively low number of apprehensions. Specifically, in the two districts with the fewest apprehensions (New Mexico and Texas Western, with about 10,000 and about 26,000 apprehensions, respectively), Border Patrol referred 80 and 75 percent of those apprehended for prosecution in fiscal year 2018. In the remaining three districts (Arizona, California Southern, and Texas Southern), each of which had more than 53,000 single adult apprehensions in fiscal year 2018, Border Patrol referred between 14 and 45 percent of those apprehended for prosecution in fiscal year 2018. According to Border Patrol officials in these three districts, various factors influenced the number of referrals to USAOs, including court capacity, availability of Border Patrol agents to prepare cases for referral, and USAO capacity to accept and prosecute cases, consistent with the Attorney General’s guidance to prioritize such prosecutions to the extent practicable.

Immigration-Related Prosecutions Increased in Fiscal Year 2018, and More than Half Were for Improper Entry

DOJ prosecuted more immigration-related cases—including improper entry, illegal reentry, and alien smuggling cases—in fiscal year 2018 than in each of the prior four fiscal years. Specifically, southwest border USAOs filed about 91,000 improper entry, illegal reentry, and alien smuggling cases in fiscal year 2018, compared to a prior four-year high of about 78,000 immigration-related cases filed in 2014. On the basis of our analysis of DOJ data, cases with a lead charge of improper entry comprised more than half of DOJ’s immigration-related cases filed each year from fiscal years 2014 through 2018. Further, the total number of cases filed with a lead charge of improper entry, illegal reentry, or alien smuggling increased between fiscal year 2017 and fiscal year 2018 in the five southwest border districts, consistent with the priorities in the April 2017 and April 2018 memoranda, although the magnitude of the increases varied. Figure 4 illustrates the number of cases filed by USAOs with a lead charge of improper entry, illegal reentry, or alien smuggling along the southwest border, as well as trends in such cases from fiscal years 2014 through 2018.

From fiscal year 2014 through 2018, more than 95 percent of improper entry, more than 90 percent of illegal reentry, and more than 80 percent of alien smuggling cases ended in convictions. The majority of defendants for improper entry and illegal reentry cases from fiscal years 2014 through 2018 were Mexican nationals, although the proportion of defendants with nationalities other than Mexican increased in fiscal year 2018 relative to the prior four fiscal years. The majority of defendants for alien smuggling cases from fiscal years 2014 through 2018 were U.S. nationals. See appendices II and III for more detailed information on case dispositions and nationalities of defendants.

Improper entry. DOJ data indicate that the total number of cases filed with a lead charge of improper entry in southwest border districts more than doubled between fiscal year 2017 and 2018, as illustrated in table 5.

Figure 5 illustrates the number of improper entry cases filed by southwest border USAOs each month in fiscal years 2017 and 2018.

In New Mexico and Arizona, the number of improper entry cases filed increased notably in June 2017. These districts generally did not prosecute first-time entrants for these misdemeanor offenses from 2014 until 2017, and changed their prosecution practices in response to the Attorney General’s April 2017 memorandum, according to USAO officials we spoke with in those districts.

In Texas Southern, the number of improper entry cases filed increased notably in April 2018. Prior to April 2018, the USAO in McAllen allowed 40 to 50 improper entry prosecutions per day, according to USAO officials. The USAO removed this limitation in response to the Attorney General’s April 2018 memorandum. As of October 2018, this USAO accepts all prosecution referrals with sufficient evidence (on average, 100 to 200 improper entry prosecutions per day), according to officials. From fiscal year 2017 through 2018, improper entry cases filed in Texas Southern nearly tripled, from about 10,800 to about 30,100 cases.

In Texas Western, the number of improper entry cases filed began to increase in March 2018, but to a lesser extent than other districts, and then decreased from July through September 2018. USAO officials attributed the increase to increased Border Patrol apprehensions and said that they accept all Border Patrol prosecution referrals, but the number of cases that the USAO receives depends on fluctuating Border Patrol apprehension numbers.

In California Southern, the number of improper entry cases filed began to increase in May 2018. Prior to July 2018, California Southern did not have a court docket dedicated to prosecuting improper entry misdemeanor offenses. According to officials, following the Attorney General’s April 2018 memorandum, the San Diego district court, in coordination with the USAO, agreed to establish a daily improper entry docket with the capacity to hear initial appearances for 40 to 52 improper entry cases each day.

Illegal reentry. DOJ data indicate that the number of cases USAOs filed with a lead charge of felony illegal reentry along the southwest border declined from fiscal years 2015 through 2017 before increasing by 2,669 cases from fiscal year 2017 through 2018. However, the number of illegal reentry cases filed in fiscal year 2018 (25,112) was lower than in fiscal year 2014 (31,670) or 2015 (28,480), and the magnitude of the increase in illegal reentry cases filed from fiscal year 2017 through 2018 (12 percent) was smaller than the increase in improper entry cases during the same period (130 percent).

The number of cases filed with a lead charge of illegal reentry declined in Arizona each year between fiscal years 2015 and 2018, but increased or varied in other districts. Between fiscal year 2017 and 2018, illegal reentry cases filed increased most notably in Texas Western, where there were 69 percent more illegal reentry cases filed in fiscal year 2018 than in fiscal year 2017. Federal court and USAO officials in Texas Western attributed this increase in illegal reentry prosecutions to increased Border Patrol apprehensions and referrals for prosecution in fiscal year 2018. Table 6 illustrates illegal reentry cases filed, by fiscal year, from fiscal years 2014 through 2018.

USAO officials attributed the changes in illegal reentry cases filed from fiscal year 2014 through 2018 to changes in prosecution practices as well as changes in the number of apprehensions. For instance, the New Mexico USAO removed a monthly limitation originally enacted in fiscal year 2016 on the number of illegal reentry cases filed they would accept following the April 2017 memorandum, according to Border Patrol and USAO officials. Other locations have varying thresholds and practices regarding accepting, charging, and prosecuting illegal reentry cases.

USAO officials in New Mexico and Texas Western told us that they charge defendants with illegal reentry if the defendant has one prior deportation or one prior conviction for improper entry. Officials in three other districts told us that they generally require a more extensive criminal history—for instance, they might require multiple prior improper entry convictions—to charge illegal reentry.

USAO officials in Arizona and California said that they file cases with a lead charge of illegal reentry that might ultimately end with improper entry convictions. For example, our analysis of EOUSA data indicates that of almost 12,000 illegal reentry cases filed in Arizona in fiscal year 2017, approximately 77 percent ended with an improper entry conviction and approximately 18 percent ended with an illegal reentry conviction.

Figure 6 illustrates the number of cases filed with a lead charge of illegal reentry filed each month in fiscal years 2017 and 2018.

Alien smuggling. DOJ data indicate that the number of cases filed with a lead charge of alien smuggling increased in four of the five southwest border districts from fiscal year 2017 through 2018. Officials from two USAO locations along the southwest border told us that they changed their thresholds for how many material witnesses (individuals being smuggled) must be present to accept an alien smuggling referral in response to the Attorney General’s April 2017 memorandum. For instance, the USAO in San Diego lowered the threshold for accepting alien smuggling referrals and, following the April 2017 memorandum, places equal priority on all alien smuggling referrals. Prior to the April 2017 memorandum, the USAO would have considered several factors when deciding whether to accept the referral, such as if there was a risk of harm to the material witnesses or whether the conviction could result in a significant term of imprisonment for the smuggler.

Figure 7 illustrates the number of cases filed with a lead charge of alien smuggling each month over fiscal years 2017 and 2018.

Agencies Realigned Existing Resources and Allocated Additional Resources to Help Increase Immigration-Related Prosecutions

Agencies Along the Southwest Border Shifted Existing Resources to Support Increased Immigration-Related Prosecutions

DOJ, DHS, and the federal judiciary realigned resources to support the prosecution priorities outlined in the April 2017 and April 2018 memoranda. Officials from USAOs, USMS, Border Patrol, federal courts, and federal defenders along the southwest border told us that they are using more personnel, physical space, or both to support increased immigration-related prosecutions than they were prior to DOJ’s prioritization of immigration enforcement in April 2017. When USAOs along the southwest border changed their prosecutorial priorities and realigned resources in response to the April 2017 and April 2018 memoranda, other agencies, such as USMS and the federal judiciary, also realigned resources to respond to and support increased immigration-related prosecutions. In some cases, these realignments affected their ability to conduct other activities. Officials from USMS and the courts told us that, as stakeholders in the federal criminal process, they are accustomed to reacting to changing conditions that may affect their operations. For example, these officials’ operations could be affected by changes in the number of Border Patrol apprehensions, changes in Border Patrol’s prosecution referral priorities, changes in the location of drug or human smuggling activity, and changing USAO prosecutorial priorities, among other things.

USAOs. USAO officials in three locations stated that the more time prosecutors spend on reactive work—such as misdemeanor or felony immigration-related cases—the less time Assistant U.S. Attorneys (AUSA) have to work on other issue areas, including proactive cases that may take months or years of work to build, or civil cases. For instance, USAO officials from Texas Southern said that the high immigration caseload in McAllen affects AUSAs’ ability to prosecute other types of cases, such as Organized Crime Drug Enforcement Task Force cases, which tend to be long-term cases. According to USAO officials in San Diego, when prosecutors began accepting improper entry referrals in July 2018, there was a short-term decline in the number of prosecutions that were initiated for other cases. This decline mainly affected drug and alien smuggling cases, some of which were referred to state or local prosecutors, according to USAO officials in San Diego. As of October 2018, USAO officials in San Diego said that improper entry prosecutions were not affecting their ability to accept referrals for new felony prosecutions.

USMS. According to USMS officials, each additional court docket, courtroom in use, or immigration-related defendant who appears in court requires judicial security support. USMS officials in all five southwest border locations told us that they took actions to meet the judicial security mission need, but that the increased prosecutions have strained their staff. USMS officials we spoke with in all five southwest border districts said that they reassigned deputies in fiscal year 2018 from proactive task forces (such as task forces dedicated to arresting individuals with active federal warrants) to judicial security court duty and detention security to support increased immigration-related prosecutions. In particular, USMS officials said that they assigned more deputies to judicial security court duty because of the increase in improper entry prosecutions. USMS officials we spoke with in several locations on the southwest border said that the increased judicial security duty has made it difficult for their deputies to meet their training requirements. They are concerned that the high demand for judicial security in southwest border districts may affect their ability to retain deputies.

Officials from USMS in multiple locations along the southwest border told us that the increase in immigration-related prosecutions strained their existing detention space. For instance, California Southern required additional detention space for defendants in improper entry cases, and could not locate additional detention space nearby or within the judicial district. As a result, USMS officials told us in October 2018 that deputies may drive defendants to neighboring judicial districts, including California Central, Nevada, and Arizona, to detain them before and between court appearances. According to USMS officials, providing transportation for such defendants can comprise deputies’ entire shifts. Additionally, officials in the Texas Western district told us in November 2018 that due to the increase in immigration-related prosecutions in fiscal year 2018, detention facilities in Del Rio reached capacity. USMS transports prisoners up to seven hours one way to other detention facilities. Further, USMS received permission to triple-bunk prisoners (using three stacked beds, rather than two stacked beds) in Del Rio and El Paso, and to use additional temporary beds, such as cots, to house additional prisoners close to courthouses.

As we have previously reported, the average daily population of USMS prisoners is directly influenced by, among other things, the activities and decisions of federal law enforcement, USAOs, and the federal judiciary. According to USMS data, the average daily population of immigration- related prisoners on the southwest border increased from 7,796 in May 2017 (a five-year low) to 11,668 in September 2018 (a five-year high). According to USMS officials with whom we spoke and documents we reviewed, in 2018, USMS sought additional detention space. In May 2018, USMS issued a public request for information to determine the availability of contractor owned and operated secure detention facilities on the southwest border. In October 2018, USMS signed intragovernmental agreements with two local detention facilities in Texas, adding approximately 655 available beds to its inventory. Additionally, USMS officials in Las Cruces told us that they had more detention space than they required for prisoners in New Mexico and that, following the April 2018 memorandum, USMS began to accept prisoners from other districts. Prior to the April 2018 memorandum, USMS in New Mexico had approximately 1,300-1,400 of their own prisoners in custody. As of November 2018, USMS in Las Cruces had approximately 1,800 prisoners in custody from New Mexico and approximately 500 prisoners in custody from neighboring districts.

Border Patrol. Border Patrol agents support, and in some cases supplement, DOJ components in both prosecution and judicial security work. As of March 2019, in nine of nine southwest border sectors, Border Patrol reported that it had detailed agents to USAOs to assist with tasks like data entry and preparing court documents for immigration-related prosecutions. In addition, in seven of nine sectors, Border Patrol detailed agents to USMS locations to assist with judicial and detention security. The number of agents from Border Patrol that are detailed to assist DOJ components with immigration-related prosecutions generally varies based on the volume of prosecutions that the USAO receives and accepts and, in some sectors, based on available Border Patrol agent resources, according to Border Patrol officials. Following the Attorney General’s memoranda, Border Patrol increased the number of agents that it detailed to certain USAOs and USMS locations along the southwest border, both temporarily and on an ongoing basis, because of the increased volume of immigration-related prosecutions, according to Border Patrol officials. As of March 2019, Border Patrol sectors across the southwest border detailed from zero to four agents to perform USMS functions, and zero to five agents to perform USAO functions. The length of detail and duties assigned to Border Patrol agents detailed to USAOs and USMS vary by location, according to officials. Generally, when an assignment ends, Border Patrol agents return to their regular Border Patrol duties.

Federal courts. Federal court officials we spoke with in five locations stated that they faced challenges resulting from the increased immigration caseload. For instance, court officials in Las Cruces said that, as of November 2018, staff in the clerk’s office often work on weekends to keep up with court scheduling and paperwork resulting from increased improper entry prosecutions. The Las Cruces court also implemented telework options for clerk staff to give them the option of working additional hours from home. Additionally, officials we spoke with from several courts reported that they had existing needs for judgeships, and the increasing immigration caseload placed additional strain on district and magistrate judges. For instance, the district court in Del Rio has one district judge and the number of illegal reentry prosecutions in fiscal year 2018 increased by almost 70 percent compared to fiscal year 2017. Court officials we spoke with in two locations told us that sentencing dates have been pushed out because of the increase in district judges’ caseloads. According to federal court officials in Del Rio, the district judge’s calendar is so full that, in some cases, a defendant’s sentencing might be pushed back far enough that the defendant has already served more jail time than the federal sentencing guidelines recommend by the time the defendant is sentenced.

In addition, multiple court officials in multiple locations across the southwest border told us that increased immigration-related prosecutions, and particularly improper entry cases, increases strain on courtroom facilities and equipment and, in some instances, courts have to replace equipment and furniture more often. For example, in Tucson, Arizona, the improper entry courtroom can hold up to 75 improper entry defendants in restraints, such as handcuffs and/or leg restraints, at a time during morning improper entry proceedings, and court officials told us that the restraints worn by defendants cause damage to the chairs and benches in the courtroom.

Defender services. FDO staff we spoke with in several southwest border districts told us that they dedicated more staff or staff time towards defendants in immigration-related cases and accommodated increased prosecutions within existing resources as of December 2018. For instance, defenders in Las Cruces stated that the court added a new docket for improper entry cases, and defense attorneys are at times scheduled to be in two courtrooms at once, and must cover for each other. Defenders in Las Cruces also told us that they have run out of physical office space for their staff. Federal defenders in McAllen said that the amount of time defense attorneys spend on improper entry interviews affects the time they can spend on felony cases. In addition, these defenders described the process of preparing 100 or more defendants for criminal proceedings each day as draining. Defenders in McAllen noted that they filed more continuances in fiscal year 2018 than in prior years as a result of the increased workload caused by the expanded improper entry docket.

DOJ, DHS, and the Federal Judiciary Added Personnel to Support Increased Immigration- Related Prosecutions in the Short and Long-Term, and Tracked Some Related Expenditures

EOUSA, USMS, Border Patrol, and the federal judiciary temporarily surged personnel from locations across the United States to the southwest border to support increased immigration-related prosecutions. These agencies tracked some costs associated with those temporarily detailed personnel, among other costs associated with increased immigration-related prosecutions. Additionally, EOUSA announced plans to hire new attorneys to prosecute immigration-related offenses in May 2018, both on the southwest border and in the interior of the United States.

EOUSA. In May and June 2018, DOJ announced plans to permanently hire 70 new AUSAs to prosecute immigration-related offenses both at the southwest border and in the interior of the U.S. Additionally, EOUSA officials told us that they subsequently received DOJ approval to hire 13 more AUSAs to work on immigration and border security issues on the southwest border. In fiscal year 2018, EOUSA expended about $9.8 million on personnel costs associated with these prosecutors—including 35 immigration crimes prosecutors in the interior of the United States, 42 immigration crimes prosecutors in the five southwest border districts, and 6 civil condemnation AUSAs working on the southwest border. EOUSA estimated that the fiscal year 2019 continuing personnel costs associated with these prosecutors would be about $17 million. In its fiscal year 2020 Congressional Budget Justification, EOUSA requested a $23.3 million increase in funding from Congress to sustain hiring and program operations that were initially funded in fiscal year 2018, including the immigration prosecutors. EOUSA also intends to allocate a portion of these 2020 funds to USAOs around the country with demonstrable workload challenges.

EOUSA and USAO officials said that these permanent AUSA positions would support immigration prosecutions on the southwest border in the long-term. USAO officials we spoke with in all five southwest border districts between July and November 2018 said that they were in the process of hiring these immigration AUSAs. While EOUSA was in the process of permanently hiring new AUSAs, EOUSA temporarily surged Special Assistant U.S. Attorneys (SAUSAs) to southwest border districts that needed more prosecutors to handle the increased immigration caseload. Some of these SAUSAs prosecuted improper entry offenses specifically and others prosecuted any immigration-related case. Specifically, EOUSA solicited attorneys from other DOJ components, the Department of Defense (DOD), and CBP to serve as SAUSAs for immigration-related offenses along the southwest border.

Beginning in June 2017, DOJ detailed 12 attorneys from non- southwest border USAOs and other DOJ components to prosecute immigration-related cases in all five districts on the southwest border. In fiscal years 2017 and 2018, EOUSA expended approximately $440,000 on travel and lodging for these 12 SAUSAs.

In June 2018, DOD agreed to provide military attorneys to act as SAUSAs and support immigration-related prosecutions on the southwest border. DOD detailed a total of 21 military attorneys to the southwest border for approximately six months each between June 2018 and January 2019, according to EOUSA. According to USAO officials in New Mexico, which received five military SAUSAs, and California Southern, which received five, these SAUSAs provided key support that allowed these districts to increase improper entry and illegal reentry prosecutions beginning in June 2018. In fiscal year 2018, EOUSA estimated that it expended approximately $1,186,000 on salaries, travel, and lodging for these 21 SAUSAs.

In some southwest border locations, CBP regularly provides SAUSAs to add prosecutor capacity to USAOs. For example, in four locations, CBP SAUSAs are the federal prosecutors for misdemeanor improper entry cases and appear daily in court to prosecute these cases. In San Diego, CBP SAUSAs began supporting the misdemeanor improper entry docket in July 2018, when the docket began. In New Mexico, 10 part-time CBP SAUSAs supported the improper entry docket temporarily between January and July 2018, which allowed New Mexico to begin prosecuting improper entry cases with no effect to the workload of its full-time AUSAs. CBP officials also said that CBP has provided full-time SAUSAs for a six or 12-month term to some USAOs on an ongoing basis, depending on USAO request and CBP workload. USAO officials have asked CBP for additional SAUSAs in San Diego and Yuma; as of April 2019, CBP officials said that due to CBP’s workload in these locations, they have not agreed to additional SAUSAs in these locations.

USMS. From June through November 2018, USMS detailed deputies from non-southwest border locations to southwest border courts to support judicial security operations. Approximately 96 deputies participated in these temporary detail rotations, which lasted two to three weeks each, over the six month period. USMS established a budget code to track additional expenditures that USMS headquarters incurred related to implementing the April 2018 memorandum. These additional expenditures included travel and lodging costs for the detailed USMS deputies and transportation costs, among others. USMS reported approximately $1,149,000 in expenditures from May through December 2018 under this budget code. In its 2020 Congressional Budget Justification, USMS requested nearly $8 million from Congress for 35 positions to address departmental priorities and initiatives, including immigration enforcement. USMS officials said that their workload, including immigration prosecutions in fiscal year 2018 surpassed previous peak levels. For instance, USMS reported more immigration-related “prisoners received” in 2018 than in each of the prior five fiscal years.

Border Patrol. Border Patrol established a budget code in April 2018 to track additional expenditures directly associated with implementing the April 2018 memorandum. In particular, according to Border Patrol budget officials and documentation, Border Patrol officials were to use the budget code to track expenditures related to detainee food, supplies, and transportation. In addition, the code was to be used for Border Patrol agent overtime expenditures and any travel expenditures that could be attributed to the April 2018 memorandum. From April 2018 through December 2018, Border Patrol reported approximately $2,316,000 in expenditures under this budget code.

Federal judiciary. The federal judiciary sends visiting judges from other parts of the United States to southwest border districts to assist with judge caseloads, including immigration cases. For instance, the federal judiciary approved 67 visiting judge assignments from other parts of the U.S. to New Mexico and Texas Western in fiscal years 2017 and 2018; AOUSC reported expending approximately $114,000 on travel costs for these visiting judges.

Federal courts along the southwest border also expended more funds on contracted interpreter services in fiscal year 2018 than in any of the prior four fiscal years. When a defendant does not speak English, courts may have interpreters on staff and courts may use contracted interpreter services. Court officials from multiple locations along the southwest border told us that contracted interpreter services became increasingly difficult to obtain following the increase in immigration-related prosecutions. According to federal judiciary documentation, there were 100,000 more court events, or defendant appearances before a judge, in southwest border courts requiring court interpreter services in fiscal year 2018 than there were in fiscal year 2017. Expenditures for contracted court interpreters increased by over $450,000 from fiscal year 2017 to fiscal year 2018 for southwest border courts.

Agency Comments

We provided a draft of the sensitive report to DOJ, DHS, and AOUSC for their review and comment. DOJ, DHS, and AOUSC provided technical comments, which we incorporated as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Attorney General of the United States, the Acting Secretary of the Department of Homeland Security, the Administrative Office of the U.S. Courts, and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-8777 or goodwing@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix V.

Appendix I: Objectives, Scope, and Methodology

This appendix provides additional details on our objectives, scope, and methodology. Specifically, our objectives were to provide information on the following: 1. how the Department of Justice (DOJ) prioritized criminal prosecutions of immigration-related offenses in response to the Attorney General’s 2017 and 2018 memoranda; 2. what Department of Homeland Security (DHS) and DOJ data from fiscal years 2014 through 2018 indicate about criminal prosecutions of immigration-related offenses; and 3. resources that DOJ, DHS, and the federal judiciary used to implement increased immigration-related prosecutions.

This report is a public version of the prior sensitive report that we provided to you in August 2019. DHS, DOJ, and the Administrative Office of U.S. Courts (AOUSC) deemed some of the information in the prior report as Law Enforcement Sensitive or For Official Use Only, which must be protected from public disclosure. Therefore, this report omits sensitive information about specific law enforcement, prosecutorial, and judicial practices along the southwest border, including certain courtroom security and agency staffing information. Although the information provided in this report is more limited, the report addresses the same objectives as the sensitive report and uses the same methodology.

For all three objectives, we generally focused our review on the five U.S. Attorney Office (USAO) districts along the southwest border—Arizona, California Southern, New Mexico, Texas Southern, and Texas Western— because the Attorney General’s 2017 and 2018 memoranda specifically directed officials in these districts to prioritize improper entry prosecutions. Further, approximately 93 percent of all immigration-related prosecutions from fiscal years 2014 through 2018 took place in these districts. USAO districts and federal judicial districts have the same boundaries. U.S. Border Patrol (Border Patrol) sectors along the border are generally not contiguous with USAO districts.

We visited three of the five districts and interviewed officials by telephone from the other two southwest border districts. Specifically, we conducted in-person site visits to Arizona in July 2018 and to California Southern and Texas Southern in October 2018. We selected these locations on the basis of several factors, including Border Patrol apprehension characteristics and DOJ prosecution practices. Specifically, to select the locations for our site visits, we considered DOJ’s history of prosecuting improper entry offenses in different locations, including whether districts implemented changes to their practices for prosecuting improper entry offenses in response to the Attorney General’s memoranda. For instance, we considered districts’ practices for prosecuting improper entry offenses and whether those practices changed in response to the April 2017 or April 2018 memoranda. In addition, we considered the number of Border Patrol apprehensions in each USAO district and changes in the number of apprehensions from fiscal years 2014 through 2018. We also considered factors such as whether DOJ, DHS, and federal court facilities are in close proximity, among other things.

In the three districts we visited, we met with DOJ and federal court officials, including magistrate and district judges, to understand and observe their roles in the criminal prosecution process. We met with USAO, U.S. Marshals Service (USMS), Federal Defender Organizations (FDO), and federal court officials and observed federal criminal court proceedings in Tucson, Arizona; San Diego, California; McAllen, Texas; and Brownsville, Texas. We observed the criminal prosecution process from arrest to conviction and sentencing, including observations of district and magistrate court proceedings and USMS intake and holding facilities in federal courthouses. In addition, we observed U.S. Customs and Border Protection’s Border Patrol agents and Office of Field Operations (OFO) officers processing apprehended individuals and referring them for prosecution. We met with Border Patrol officials in Tucson, Arizona; McAllen, Texas; and San Diego, California. We met with OFO officials at ports of entry in Nogales, Arizona; San Ysidro, California; Hidalgo, Texas; and Brownsville, Texas. We also interviewed USAO, USMS, federal court, Border Patrol, and OFO officials who are involved in immigration prosecutions in Las Cruces, New Mexico in November 2018 (New Mexico district) and Del Rio, Texas in November 2018 (Texas Western district). Although the information we obtained from these site visits and interviews cannot be generalized to all locations along the southwest border, these interviews provided important insights and perspectives about immigration-related prosecutions and any process, volume, or resource changes in immigration-related prosecutions following the April 2017 and 2018 memoranda.

To determine how DOJ prioritized immigration-related prosecutions, we obtained and reviewed operational guidance, policies, and memoranda describing how DOJ, DHS, and the federal judiciary implement such prosecutions along the southwest border. We also reviewed documentation to identify any changes to such practices associated with implementing the Attorney General’s April 2017 and the April 2018 memoranda. We reviewed training materials from the Executive Office of U.S. Attorneys (EOUSA) provided to some federal prosecutors regarding prosecuting immigration-related cases at a 2018 Border Security Coordinator conference and relevant U.S. Attorneys’ Bulletins from DOJ’s Journal of Federal Law and Practice, such as the July 2017 bulletin, Prosecuting Criminal Immigration Offenses, and the Justice Manual, which contains publicly available DOJ policies and procedures, including criminal prosecution procedures.

In addition, we interviewed headquarters and district officials from DOJ, DHS, and the federal courts to obtain their perspectives on the Attorney General’s prioritization of immigration-related prosecutions and any changes in practices as a result of the two memoranda. Specifically, from DOJ, we interviewed officials from the Offices of the Attorney General and the Deputy Attorney General about the development and implementation of the April 2017 and April 2018 memoranda. We also interviewed officials from EOUSA about headquarters-level support to USAOs. We interviewed headquarters officials from USMS about how the Attorney General’s prioritization of immigration offenses affected USMS operations and about available data measuring such effects. from DHS, we interviewed Border Patrol and OFO headquarters officials about actions CBP components took in response to the Attorney General’s prioritization of immigration prosecutions and reviewed DHS, CBP, and Border Patrol memoranda and Border Patrol operational guidance related to the prioritization of immigration prosecutions. We also interviewed officials from U.S. Immigration and Customs Enforcement (ICE) about the effect of the Attorney General’s prioritization on ICE’s operations. from the Administrative Office of the U.S. Courts (AOUSC)—the federal judiciary agency that provides legislative, administrative, management, and program support to federal courts, among other functions—we interviewed officials in Washington, D.C. about the federal judiciary’s roles and responsibilities related to criminal immigration-related cases, including the roles of magistrate and district judges and public defenders.

To determine what DHS and DOJ data indicate about prosecutions of immigration-related offenses, we analyzed record-level apprehension and prosecution referral data from Border Patrol’s Enforcement Integrated Database/e3 (e3), as well as record-level prosecution data from EOUSA’s CaseView from fiscal years 2014 through fiscal year 2018, the most recent data available at the time of our analysis.

Border Patrol data. In reviewing the Border Patrol data, we determined that the majority of Border Patrol apprehensions (about 97 percent) from fiscal years 2014 through fiscal year 2018 took place along the southwest border. We excluded the small percentage of apprehensions nationwide that did not take place along the southwest border from our primary analysis, meaning that we excluded apprehensions in all districts but Arizona, California Southern, New Mexico, Texas Southern, or Texas Western from our primary analysis. We assigned each Border Patrol sector apprehension to its corresponding judicial district to maintain the judicial district as our unit of analysis for the apprehension and prosecution referrals data. For instance, if the El Paso Border Patrol sector referred a prosecution to the USAO in Las Cruces, New Mexico, we report that referral as occurring in the district of New Mexico. We matched data from e3’s apprehensions module with data from e3’s prosecutions module using an identifier that Border Patrol officials told us was unique to each apprehended individual to analyze those individuals that were and were not referred for criminal prosecution. Border Patrol’s apprehensions and prosecution referrals include individuals who are deportable and non-deportable, as determined by Border Patrol. According to Border Patrol officials, non-deportable individuals may be U.S. citizens, foreign nationals who have a valid visa, or individuals who otherwise may not be amenable to removal from the United States. We have included non-deportable individuals in our analysis because they may be referred for prosecution for immigration-related crimes, including alien smuggling. Appendix II includes information on Border Patrol apprehensions and prosecution referrals in each judicial district from fiscal years 2014 through 2018 and information on apprehensions and prosecution referrals by nationality, including U.S. citizens. We restricted our Border Patrol data analysis to apprehensions of non-juveniles who Border Patrol did not process as members of family units. In other words, we analyzed apprehensions and prosecution referrals of single adults. According to Border Patrol guidance and agency officials, e3 has system checks in place that do not allow members of family units to be referred for criminal prosecution. Prior to April 2018, Border Patrol officials said that individuals who were to be referred for prosecution were generally processed by Border Patrol as single adults whether or not they were apprehended with their minor children. In April 2018, an update to e3 allowed Border Patrol agents to separate one or more members of a family unit from that family unit and refer those individuals for prosecution. As stated previously, we included individuals that Border Patrol processed as single adults in our analysis of Border Patrol apprehensions.

EOUSA data. In reviewing EOUSA record-level prosecution data from fiscal years 2014 through 2018, we determined that the majority of cases filed with an immigration-related lead charge (over 90 percent of cases with an immigration-related lead charge) took place along the southwest border. We excluded prosecutions that did not take place along the southwest border from our primary analysis; we report on them in an appendix. Additionally, we determined that improper entry, illegal reentry, and alien smuggling charges comprised approximately 99 percent of immigration-related cases filed on the southwest border from fiscal years 2014 through 2018. We excluded the other charges that the Attorney General listed in the April 2017 memorandum from our primary analysis. We analyzed EOUSA data based on the lead charge of the prosecution record. The lead charge is typically the most serious provable offense for which a defendant can be prosecuted, as determined by the USAO. We analyzed EOUSA data by fiscal year from fiscal years 2014 through 2018 to determine overall trends in immigration-related prosecutions over time. We also analyzed data by month in fiscal year 2017 and fiscal year 2018 to identify any changes in immigration-related prosecutions following the April 2017 and April 2018 memoranda. We interviewed knowledgeable USAO officials in southwest border districts level to understand how practices that they changed in response to the April 2017 and April 2018 memoranda were reflected in the data. We also analyzed the nationality of defendants based on lead charge for fiscal years 2014 through 2018, and for fiscal year 2018, to determine any changes in nationality of those prosecuted in the most recent fiscal year compared to prior fiscal years. We identified a population of defendants whose nationalities were listed as ‘unknown,’ in the EOUSA data. When USAOs are unable to determine the nationality of a defendant, officials entering the case data will list that nationality as ‘unknown.’ In appendix III, we report on the proportion of defendants with a nationality that is ‘unknown’ for alien smuggling cases because ‘unknown’ nationalities were relatively common for alien smuggling cases.

We grouped the lead charges into offense categories based on the statute of the offense. We analyzed EOUSA data at the statutory level rather than by the individual charged offenses because EOUSA officials told us that USAOs may have differing data entry practices related to the level of specificity at which they enter lead charge data into CaseView. Additionally, EOUSA directed USAOs to ensure that improper entry, illegal reentry, and alien smuggling cases are entered into EOUSA’s data system on a monthly basis at the statute level in August 2017. Table 8 lists the specific offenses that we combined under their shared statute for our analysis.

We assessed the reliability of Border Patrol and EOUSA data by testing for missing data and obvious errors, reviewing related documentation such as data dictionaries and guidance for entering data, and interviewing knowledgeable agency officials both at the headquarters level and in the three districts that we visited. We determined that the Border Patrol and the EOUSA data are sufficiently reliable for reporting on immigration- related prosecutions and individuals that Border Patrol apprehended and referred for criminal prosecution.

To determine the resources used to implement increased immigration- related prosecutions, we obtained and reviewed DOJ, DHS, and federal judiciary documentation focused on any existing resources that agencies realigned to implement or support increased immigration prosecutions, as well as expenditures or additional personnel used to support the implementation of increased immigration-related prosecutions. For example, we reviewed memoranda of understanding between EOUSA and the Department of Defense (DOD) regarding DOD detailing attorneys to EOUSA to prosecute immigration-related offenses, as well as USMS intergovernmental agreements used to expand detention space. We also reviewed data from USMS on the unique prisoners received, average daily prisoner population, and total prisoner appearances in court to determine any changes in the volume of USMS prisoners from fiscal year 2014 through fiscal year 2018. We reviewed documentation from southwest Border Patrol sectors specifying the number of Border Patrol agents that those sectors detailed to USMS and USAO locations, as well as any changes in the number and duration of agents detailed to those locations following the April 2017 and April 2018 memoranda.

To specifically identify expenditures or personnel for implementing increased immigration-related prosecutions, we reviewed agency documentation, such as documentation from expenditure tracking systems from USMS and Border Patrol. We interviewed agency budget and program officials from USMS’ Offices of Budget Formulation, Forecasting and Analysis, and General Counsel; EOUSA’s Office of Resource Management and Planning; AOUSC’s Office of the Financial Liaison and Analysis Staff; Border Patrol’s Office of Budget Execution; OFO’s Office of Budget Formulation; CBP’s Budget Office; and CBP’s Office of Chief Counsel.

In instances where there was no explicit distinction between expenditures or personnel for specifically supporting immigration-related prosecutions and expenditures or personnel used to support other prosecutions, we identified the general account within which immigration-related prosecution costs would be included, and noted that those expenditures include costs for other prosecutions as well. In addition, where agencies identified that they used personnel resources to implement immigration- related prosecutions, we collected related documentation, such as expenditures for temporary details from other parts of the United States to the southwest border, as available, and spoke with district officials by telephone and during our site visits to better understand the use of these personnel resources. We also reviewed Congressional Budget Justifications for fiscal year 2020 to identify expenditures that agencies requested from Congress to support increased immigration-related prosecutions.

We conducted this performance audit from May 2018 to August 2019 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Enclosures on U.S. Southwest Border Districts

This appendix provides additional detail on and characteristics of immigration-related prosecutions in the five U.S. southwest border districts: Arizona, California Southern, New Mexico, Texas Southern, and Texas Western. Each enclosure contains the following information: Description of the district. In this section, we provide a narrative description of the district, including prosecution practices in the district for improper entry, illegal reentry, and alien smuggling cases. We also provide information on the location of the federal courts in the district, U.S. Border Patrol (Border Patrol) sectors in the district, and the federal court circuit in which the district falls. Descriptions of the district reflect practices that were in place as of the date we observed prosecution practices or interviewed knowledgeable officials in the district, which generally ranged from July through November 2018.

Cases filed. In this table, we show cases filed by the U.S. Attorney’s Office in the district with a lead charge of alien smuggling, improper entry, or illegal reentry from fiscal years 2014 through 2018. The lead charge is typically the most serious of the charged offenses at the time the U.S. Attorney’s Office files the case, according to Executive Office for U.S. Attorneys (EOUSA) officials. Table 9 describes these offenses.

Dispositions. In this table, we show the dispositions of those cases with a lead charge of alien smuggling, improper entry, or illegal reentry from fiscal years 2014 through 2018, as of September 30, 2018, based on the year the case was filed by the U.S. Attorney’s Office. We have included a “pending” column for those cases that did not have a disposition, as of September 30, 2018.

Apprehensions and prosecution referrals. In this table, we show prosecution referrals and declinations for those single adults that Border Patrol apprehended from fiscal years 2014 through 2018. In particular, this table includes single adults that Border Patrol apprehended and processed as an individual apprehension, not as a member of a family unit. The U.S. Attorney’s Office decides whether to accept or decline each case that Border Patrol refers for prosecution. We show those cases (each apprehended individual is one case) that Border Patrol referred to the U.S. Attorney’s Office for prosecution and the number of such cases that the U.S. Attorney’s Office declined to prosecute. Individuals whose immigration-related criminal cases are declined by a U.S. Attorney’s Office may be processed in administrative removal proceedings.

Nationality and prosecution referrals. In this table, we show the number of prosecution referrals from Border Patrol to U.S. Attorneys’ Offices, by country of nationality. These include both referrals that U.S. Attorneys’ Offices accepted and those that U.S. Attorneys’ Offices declined. We also show, by country of nationality, the percent of individuals who were apprehended and referred for prosecution compared to all those apprehended. For example, if 100 Mexican nationals were apprehended and 50 were referred for prosecution, 50 percent of Mexican nationals apprehended were referred for prosecution.

Cases filed by month. In this figure, we show the cases filed with lead charges of alien smuggling, improper entry, or illegal reentry each month from October 2016 through September 2018. We also show the timing of the Attorney General’s April 2017 memorandum, which prioritized immigration enforcement, and the Attorney General’s April 2018 memorandum, which instructed prosecutors on the southwest border to accept all improper entry referrals, to the extent practicable.

Volume constraints: Yes; generally 75 improper entry cases per day in Tucson and 30 in Yuma.

One-day improper entry prosecutions: No

Volume constraints: Yes; daily generally 40 to 52 improper entry initial appearances in San Diego and 20 in El Centro.

Alien smuggling (8 U.S.C. § 1324): According to U.S. Attorney officials, alien smuggling cases are labor intensive and require significant documentation.

Percentages may not add to 100 due to rounding.

Year 2014

One-day improper entry prosecutions: No

Improper entry (8 U.S.C. § 1325): Las Cruces (New Mexico’s border court) resumed improper entry prosecutions for individuals with no criminal history in June 2017 after generally not prioritizing them from 2014 through 2017. In general, improper entry defendants make an initial appearance, are remanded to U.S. Marshals custody, and return to court 3 to 4 days later. At the second hearing, most plead guilty and are sentenced.

Alien smuggling (8 U.S.C. § 1324): Witnesses in alien smuggling cases are generally not detained in New Mexico.

Percentages may not add to 100 due to rounding.

Year 2014

Volume constraints: No

Alien smuggling (8 U.S.C. § 1324): In general, alien smuggling cases with sufficient evidence are accepted for prosecution; prior to 2017, the USAO generally declined referrals involving fewer than 6 smuggled aliens.

Percentages may not add to 100 due to rounding.

Year 2014

Volume constraints: No

Alien smuggling (8 U.S.C. § 1324): Court officials in Del Rio attributed the increase in alien smuggling cases to a change in smuggler practices – from drug smuggling to human smuggling.

Percent of those apprehended referred for prosecution Year Guatemala Mexico 2014 71 73

Appendix III: Nationality of Defendants

This appendix provides additional detail on the nationality of defendants for improper entry, illegal reentry, and alien smuggling cases filed in U.S. southwest border federal judicial districts from fiscal years 2014 through 2018. We analyzed the nationality of defendants in cases filed with a lead charge of 8 U.S.C. § 1325 (improper entry), 8 U.S.C. § 1326 (illegal reentry after removal, or illegal reentry), and 8 U.S.C. § 1324 (alien smuggling) from fiscal year 2014 through fiscal year 2018 and for fiscal year 2018.

Our analysis of Executive Office for U.S. Attorneys (EOUSA) data indicates that the majority of defendants for cases filed with a lead charge of improper entry and illegal reentry from fiscal year 2014 through 2018 were Mexican nationals. The majority of defendants in cases filed with a lead charge of alien smuggling over this time period were U.S. nationals.

Improper entry (8 U.S.C. § 1325): From fiscal years 2014 through 2018, the majority of defendants in cases filed with a lead charge of improper entry were Mexican nationals. Our analysis of EOUSA data indicates that, in fiscal year 2018, the proportion of improper entry defendants who were Mexican nationals was lower than the fiscal year 2014 through 2018 time period, and the proportion of improper entry defendants who were Honduran or Guatemalan nationals was higher than the fiscal year 2014 through 2018 time period. The number of improper entry defendants who were Nicaraguan nationals increased substantially from fiscal year 2017 to 2018—from fewer than 70 defendants in fiscal year 2017 to more than 900 in fiscal year 2018. Figure 13 illustrates the nationalities of defendants with cases filed with a lead charge of improper entry, both from fiscal years 2014 through fiscal year 2018, and in fiscal year 2018.

Illegal reentry (8 U.S.C. § 1326): The majority of defendants with cases filed with a lead charge of illegal reentry after removal from fiscal years 2014 through 2018 were Mexican nationals. Our analysis of EOUSA data indicates that, in fiscal year 2018, the proportion of illegal reentry defendants who were Mexican nationals was lower than in the fiscal year 2014 through 2018 time period, and the proportion of illegal reentry defendants who were Honduran or Guatemalan nationals was higher than in the fiscal year 2014 through 2018 time period. Figure 14 illustrates the nationalities of defendants with cases filed with a lead charge of illegal reentry, both from fiscal years 2014 through fiscal year 2018, and in fiscal year 2018.

Alien smuggling (8 U.S.C. § 1324): The majority of defendants in cases filed with a lead charge of alien smuggling from fiscal year 2014 through fiscal year 2018 were U.S. nationals. Our analysis of EOUSA data indicates that, in fiscal year 2018, the proportion of defendants for alien smuggling who were U.S. nationals was lower than in the fiscal year 2014 through 2018 time period. Figure 15 illustrates the nationalities of defendants with cases filed with a lead charge of alien smuggling, both from fiscal years 2014 through fiscal year 2018, and in fiscal year 2018.

Appendix IV: Immigration-Related Prosecutions in Non-Southwest Border Districts

This appendix provides additional detail on cases filed in the 89 non- southwest border judicial districts with a lead charge of 8 U.S.C. § 1325 (improper entry), 8 U.S.C. § 1326 (illegal reentry after removal), or 8 U.S.C. § 1324 (alien smuggling) from fiscal year 2014 through fiscal year 2018. Specifically, this appendix analyzes the number of cases filed with one of these lead charges in every district but Arizona, California Southern, New Mexico, Texas Southern, and Texas Western. Our analysis of Executive Office for U.S. Attorneys (EOUSA) data indicates that illegal reentry cases comprised the majority of immigration-related offenses in non-southwest border districts. From fiscal year 2014 through fiscal year 2018, about 14 percent of cases filed with a lead charge of illegal reentry were filed in non-southwest border districts. Figure 16 illustrates the number and trends in cases filed with a lead charge of improper entry, alien smuggling, or illegal reentry in non-southwest border districts from fiscal years 2014 through 2018.

Our analysis of EOUSA data indicates that cases filed with a lead charge of illegal reentry in non-southwest border districts increased by approximately 26 percent between fiscal year 2017 and fiscal year 2018. Illegal reentry cases comprised approximately 91 percent of immigration- related cases filed in non-southwest border districts from fiscal years 2014 through 2018. Table 30 illustrates the number of illegal reentry cases filed by non-southwest border district and fiscal year.

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Kathryn Bernet (Assistant Director), Mary Pitts (Analyst-in-Charge), Isabel Band, Dominick Dale, Jan Montgomery, Heidi Nielson, Hiwotte Amare, Michele Fejfar, and Eric Hauswirth made key contributions to this work.