Legal actions against undocumented migrants ceased during the pandemic and have not resumed

President Joe Biden has largely given up on criminally prosecuting illegal immigrants for crossing the border, with the number of prosecutions of serious immigration offenses lower during every year of the Biden administration than any year of the Trump or Obama administrations, a Daily Wire analysis of newly-released data shows.

The prosecutions have screeched to a virtual halt under Biden. In 2018, the Department of Justice charged 84,000 people with illegal entry, a misdemeanor. The total number charged with this misdemeanor during the entire three-year period from 2021 to 2023 was 11,000, according to a Daily Wire analysis of Department Of Justice data — only 4% of the old rate.

Illegals who re-enter the country after they have already been deported once are committing a felony. In 2019, the DOJ charged 27,000 people with that crime. In 2023, the number was about half that, at 14,000. This comes as the number of illegal crossings has skyrocketed, making the decrease even more striking.

The apparent decision to rely on, at best, civil deportation proceedings instead of bringing criminal charges — particularly in more egregious cases such as those who re-enter the country after already having been deported — contradicts Biden’s claim that he needs new authorities from Congress in order to secure the border.

Criminal cases against illegal immigrants essentially ceased in April 2020 when courts closed due to the coronavirus pandemic. In March 2020, 4,000 illegals were charged with entry and 2,000 with felony reentry; by April those numbers were only 671 and 960. Criminal cases for illegal entry remained essentially nonexistent during the coronavirus-lockdown period of the rest of 2020, at 13 cases in December, while felony illegal reentry charges were at half their earlier levels.

Joe Biden took office in January 2021, and the coronavirus pandemic receded. Yet criminal enforcement of immigration laws never returned.

In December 2023, the most recent month with data, a mere 708 people were charged with illegal entry and 1,236 with felony reentry. Compare that to December 2018, when those numbers were nearly 7,000 and 2,000, respectively.

The peak of criminal enforcement during the Trump administration came in June 2018, when the numbers were 9,500 and 2,237. Border apprehensions decreased, which the administration argued showed that its efforts were working as a deterrent. By comparison, the current record-low prosecution of illegal border crossing comes as crossings are at all-time highs.

The change is not simply an expected difference between Republican and Democrat administrations. Rather, Biden has taken a more lenient posture towards illegals than Barack Obama, the Democrat president for whom he served as vice president.

Though detailed data only goes back to 2019, the Executive Office of US Attorneys released annual statistics last month that make it possible to track a longer period. That data shows cases prosecuted by the Department of Justice pursuant to a referral by the Department of Homeland Security, though it doesn’t include most misdemeanor illegal-entry charges. They show that the number of illegals charged with serious immigration crimes in each year of the Biden administration was lower than any year since at least 2009.

Neither the Department of Homeland Security nor the Department of Justice responded to requests for comment.

In 2011, the Obama administration brought 37,000 serious cases referred by DHS — almost twice as many as Biden did last year. But after he won re-election to a second term, he lowered that number every year, ending at 27,000 in 2016.

The Trump administration took a few years to get back to the levels of Obama’s first term, reaching 36,607 cases in 2019 but never actually surpassing Obama’s peak, according to the DOJ data covering serious immigration crimes.

But it “smashed records” when it came to misdemeanor charges for illegal first-time entry. Although the criminal charge is less serious, it captures a significantly larger number of people.

“In FY 2018, more than 68,400 defendants were charged with misdemeanor illegal entry. This is the highest number of such defendants charged since EOUSA started to track this category and an almost 86 percent increase from the previous year. This total is also more than 4 percent higher than the previous record of over 65,500 defendants set in FY 2013,” the Trump administration said in a 2018 press release.

Gene Hamilton, who served in the DOJ during the Trump administration and now works as general counsel for America First Legal, which is helmed by Trump immigration czar Stephen Miller, told The Daily Wire that crossing the border illegally is a crime, prosecutable in criminal court, but the Biden administration has chosen to treat it like a “traffic ticket,” causing word to get out in Latin America that there is little reason not to try to come to the United States.

“Given the number of illegal aliens crossing the border, you should be seeing all-time records for prosecutions for crossing the border illegally, but you’re not,” Hamilton said. “They have removed a deterrent. The ultimate thing that matters to people is whether they make it into the country and are released and they call home and tell their family. If people know they could be criminally prosecuted, it acts as a deterrent and reduces the number of people who come in the first place.”

Debate about immigration has rarely discussed the criminal figures, instead focusing on the number of civil deportation proceedings, which in the Biden administration have stacked up into a record backlog. But criminal charges, with the prospect of punishment instead of merely turning them away, can be filed for illegal entry, illegal reentry, alien smuggling, and immigration fraud.

While the Trump administration sought to create a deterrent by emphasizing prosecutions of misdemeanor, first-time border crossings, Biden has departed from historical norms by rarely prosecuting even those who commit felony re-entry—recidivist criminals who have shown that a gentle approach did not work.

In a report on fiscal year 2022 data, the United States Sentencing Commission said that illegal reentry prosecutions had decreased by 34% since 2018. It said that 97.6% of illegal reentry offenders were men, their average age was 39, and many had extensive criminal histories. It said 99.3% of convicts are sentenced to prison, for an average of 13 months.

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