Immigration Enforcement: Immigration-Related Prosecutions Increased from 2017 to 2018 in Response to U.S. Attorney General's Direction

In 2017 and 2018, the Attorney General directed federal prosecutors to prioritize prosecutions of immigration-related offenses, including improper entry into the United States, illegal reentry after a prior removal from the country, and alien smuggling, among other offenses. Most individuals prosecuted for such offenses are arrested by DHS's U.S. Border Patrol and referred to DOJ's USAOs for prosecution in federal court.

GAO was asked to review the actions DOJ, DHS, and the federal judiciary took in response to the 2017 and 2018 memoranda. GAO reviewed (1) how DOJ prioritized prosecutions of immigration-related offenses in response to the Attorney General's memoranda, (2) what DHS and DOJ data from fiscal years 2014 through 2018 indicate about such prosecutions, and (3) resources that DOJ, DHS, and the federal judiciary used to support increased immigration-related prosecutions. GAO visited three of the five southwest border USAO districts and interviewed DOJ, DHS, and federal judiciary officials by phone from the other two districts. GAO also analyzed U.S. Border Patrol data on its arrests and prosecution referrals from fiscal years 2014 through 2018; analyzed Executive Office for U.S. Attorneys data on its prosecutions from fiscal years 2014 through 2018; and reviewed relevant laws and DOJ, DHS, and federal judiciary policies, operational guidance, and budget data.

This is a public version of a sensitive report that GAO issued in August 2019. Information that DOJ, DHS, or the federal judiciary deemed sensitive has been removed.

Department of Justice (DOJ) U.S. Attorney's Offices (USAO) in all five districts along the southwest border—Arizona, California Southern, New Mexico, Texas Southern, and Texas Western—have adopted prosecution priorities aligned with the Attorney General's prioritization of criminal immigration enforcement. In particular, all five USAOs prioritized misdemeanor improper entry cases in response to the Attorney General's 2017 and 2018 memoranda. Some USAOs, such as Arizona, were able to quickly increase such prosecutions using existing practices. In other districts, such as California Southern, USAOs had to establish new practices in coordination with other stakeholders in the federal criminal prosecution process—including the Department of Homeland Security (DHS), other DOJ components such as the U.S. Marshals Service (USMS), and the federal judiciary—before they could begin accepting a significant number of improper entry cases.

Note: The lead charge is typically the most serious charged offense at the time the case is filed.

The number of improper entry cases more than doubled from fiscal year 2017 (about 27,000) to fiscal year 2018 (about 62,000). In fiscal year 2018, about 84 percent of all improper entry cases filed were completed in districts with one-day improper entry court proceedings. In these proceedings, the initial hearing, presentation of evidence, plea, and sentencing took place in one day or less.

DOJ, DHS, and the federal judiciary realigned resources to support the prosecution priorities outlined in the 2017 and 2018 memoranda, including personnel and physical space. In addition, agencies temporarily surged personnel to the southwest border. For example, USMS reassigned personnel from other enforcement areas to judicial security duties to support increased immigration-related prosecutions.

In April 2017, the Attorney General instructed federal prosecutors  nationwide to prioritize certain immigration-related offenses for criminal  prosecution, including improper entry into the United States (8 U.S.C. §  1325(a)) and illegal reentry into the United States after prior removal from  the country (8 U.S.C. § 1326). In April 2018, the Attorney General  instructed federal prosecutors to implement a zero-tolerance policy along  the southwest border and to accept all improper entry cases referred for  prosecution to the extent practicable. In announcing the policy, the  Attorney General said that an escalated effort was needed to prosecute  those who were attempting to illegally enter the country. Further, in July  2018, the Acting Chief of U.S. Customs and Border Protection’s (CBP)  U.S. Border Patrol (Border Patrol) testified that zero tolerance was  necessary to enforce the law and take action against transnational  criminal organizations and human smugglers.

The Department of Justice (DOJ) reported that it charged a record-high  number of individuals with improper entry and increased the number of  individuals charged with illegal reentry in fiscal year 2018. A first  conviction for an improper entry offense is a misdemeanor with a  maximum term of imprisonment of 6 months. A subsequent improper  entry conviction may be punishable by up to two years in prison. Illegal  reentry is a felony offense in which an alien must generally have a record  of a prior removal from the United States or a prior improper entry  conviction. Most individuals prosecuted for immigration-related offenses  are arrested by CBP and referred to DOJ’s U.S. Attorney’s Offices  (USAO) for prosecution. DOJ also accepts prosecution referrals from  other Department of Homeland Security (DHS) components, including  CBP’s Office of Field Operations (OFO) and U.S. Immigration and  Customs Enforcement (ICE). Border Patrol generally apprehends individuals at U.S. borders between ports of entry, and OFO encounters  individuals at ports of entry. ICE apprehends individuals within the United  States at locations other than borders or ports of entry.

In light of the Attorney General’s April 2017 prioritization of immigration- related prosecutions, you asked us to review data and information on  such prosecutions and the effect of the prioritization on federal resources.  Specifically, this report examines (1) how DOJ prioritized criminal  prosecutions of immigration-related offenses in response to the Attorney  General’s 2017 and 2018 memoranda; (2) what DHS and DOJ data from  fiscal years 2014 through 2018 indicate about criminal prosecutions for  immigration-related offenses; and (3) resources that DOJ, DHS, and the  federal judiciary used to support 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.

We generally focused our review on the five 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, about 93 percent of all  immigration-related prosecutions took place in these districts from fiscal  years 2014 through 2018. Figure 1 depicts southwest border judicial  districts (including USAO districts and federal court districts, which are the  same), the locations of courts, and Border Patrol sectors, which are  generally not contiguous with USAO districts.

To determine how DOJ prioritized criminal prosecutions of immigration- related offenses in response to the Attorney General’s 2017 and 2018  memoranda, we reviewed relevant agency guidance, policy, and  memoranda describing how DOJ, DHS, and the federal judiciary carry out  immigration-related prosecutions along the southwest border. We visited  three of the five southwest border districts and interviewed officials by  telephone from DOJ, DHS, and the federal judiciary from the other two  districts. Specifically, we conducted in-person site visits to Arizona in July  2018, California Southern in October 2018, and Texas Southern in  October 2018.

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. In addition, we considered the number of Border Patrol  apprehensions in each USAO district and changes in apprehension  volume 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 proceedings before district and magistrate  judges and USMS intake and holding facilities in federal courthouses. In  addition, we observed Border Patrol and OFO 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 memorandum.

In addition to our site visits, we interviewed officials from DOJ (including  officials from the Offices of the Attorney General and the Deputy Attorney  General) and DHS headquarters, as well as officials from AOUSC—the  federal judiciary agency that provides legislative, administrative,  management, and program support to federal courts, among other  functions—about their roles and responsibilities related to immigration- related prosecutions and any changes in their roles or practices following  the April 2017 and April 2018 memoranda.

To determine what DOJ and DHS data from fiscal years 2014 through  2018 indicate about prosecutions of immigration-related offenses, we  analyzed prosecution data from Executive Office of U.S. Attorney’s  (EOUSA) CaseView and apprehension data from Border Patrol’s  Enforcement Integrated Database/e3 (e3). Specifically, we analyzed e3  data on Border Patrol’s prosecution referrals and CaseView data on  USAO cases filed and dispositions from fiscal years 2014 through 2018.  We selected these years because they were the five most recent fiscal  years for which complete data were available at the time of our review.  We assessed the reliability of these 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. We determined that the data used in our analyses were  sufficiently reliable for reporting on the numbers and characteristics of  Border Patrol referrals and DOJ prosecutions of immigration-related  offenses over this time period.

In reviewing the EOUSA and Border Patrol data, we determined that the  majority of Border Patrol prosecution referrals (97 percent) and EOUSA  prosecutions (more than 90 percent) of immigration-related offenses took  place in the five southwest border districts from fiscal years 2014 through  2018. We excluded the small percentage of referrals and prosecutions  that did not take place along the southwest border from our primary  analysis. Additionally, we determined that improper entry, illegal reentry,  and alien smuggling charges comprise the majority (approximately 99  percent) of immigration-related prosecutions. We excluded the other  charges that the Attorney General listed in the April 2017 memorandum  from our primary analysis. In addition, we limited our analysis of e3 data  to those apprehended adults over the age of 18 who Border Patrol did not  process as members of family units. 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  unless the family unit is first separated in e3. 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 indicate in e3 that  one or more members of a family unit were separated and the reason for  that separation, such as for prosecution.

To determine the resources that DOJ, DHS, and the federal judiciary  used to implement increased immigration-related prosecutions, we  interviewed budget and program officials and reviewed DHS, DOJ, and  federal judiciary documentation focused on funds that agencies expended  to increase such prosecutions in fiscal years 2017 and 2018, as well as  any existing resources that agencies realigned to implement or support  increased immigration prosecutions. We also reviewed Congressional  Budget Justifications for fiscal year 2020 to identify funds that agencies  requested from Congress to support increased immigration-related  prosecutions. In instances where there was no explicit distinction between  funds for immigration-related prosecutions and funds for 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. In addition, where  agencies identified that they used personnel resources to implement  immigration-related prosecutions, we collected related information, such  as expenditures for temporary staff details from other parts of the United  States to the southwest border, as available. For more details on our  scope and methodology, see appendix I.

The performance audit upon which this report is based was conducted  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. We  subsequently worked with DHS, DOJ, and AOUSC from September 2019  to December 2019 to prepare this nonsensitive version of the original  sensitive report for public release. This public version was also prepared  in accordance with these standards.

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.

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.

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.

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.

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.

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.

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

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

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.

In 2017 and 2018, the Attorney General directed federal prosecutors to prioritize prosecutions of immigration-related offenses such as improper entry, illegal reentry after a prior removal, and alien smuggling.

We reviewed actions the Departments of Justice and Homeland Security and the federal judiciary took in response.

DOJ offices along the southwest border all increased immigration-related prosecutions

Misdemeanor improper entry cases more than doubled to about 62,000 in fiscal year 2018 over the prior year, with most cases completed in 1-day proceedings

Agencies realigned resources to support increased immigration-related prosecutions