A new report (http://trac.syr.edu/immigration/reports/251/), compiled from Department of Justice data by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, reveals a trend that may surprise both critics and supporters of the Obama administration’s stance on immigration: In the first half of fiscal year 2011, illegal re-entry – attempting to enter the United States after having “been denied admission, excluded, deported or removed” – was the most commonly recorded lead charge brought by federal prosecutors.

Alone, the charge of illegal re-entry accounted for nearly half (47 percent) of all criminal immigration prosecutions filed, and just under a quarter (23 percent) of all federal criminal prosecutions.

The number is high not only in comparison to the numbers of other federal lead charges, but also in comparison to the number of illegal re-entry charges brought in previous administrations. The graph provided by TRAC shows steady increases in illegal re-entry charges under Presidents George H.W. Bush and Bill Clinton, a pronounced surge under President George W. Bush, and a dramatic jump under Barack Obama: On pace to prosecute more than 37,000 cases in 2011, the Obama administration will, if the trend holds, prosecute more illegal re-entry cases in its first term than during both terms of George W. Bush.

There is a big difference, in the eyes of the U.S. government, between illegal entry – a petty misdemeanor – and illegal re-entry, which is a felony punishable by two to 20 years in prison. Prison sentences for illegal re-entry currently average about 14 months.

Interestingly, over the past five years, the surge in criminal prosecutions – both for illegal entry and illegal re-entry – has coincided with a steep decline in the number of border apprehensions by U.S. Customs and Border Protection. About 463,000 people were apprehended at the border in 2010, compared to about 1.1 million in 2006. Given recent, if modest, increases in enforcement resources on the border, it’s reasonable to assume the lower apprehension rate reflects an overall decrease in unlawful border crossings. Has the government’s higher priority on charging immigration crimes worked as a deterrent?

Emphasis on Illegal Re-entry Prosecution
The administration’s emphasis on prosecuting immigration crimes can be traced to an initiative launched in 2005, Operation Streamline, which – instead of simply returning illegal immigrants across the border – enabled the fast-tracking of federal criminal charges for unlawful border crossings. The Obama administration, just as it has done with another Bush-era immigration program, Secure Communities, has expanded an existing immigration enforcement program to a level at which immigrant advocates are crying foul. With illegal entry cases being wrapped up in as little as two days under Operation Streamline, critics are claiming a lack of due process for the accused.

Detractors also claim there’s no convincing evidence that the increase in immigration crime prosecutions has deterred unlawful border crossings – the lingering economic recession, which has dramatically reduced job prospects for immigrants, is to blame, they say.

Another charge against the administration’s approach is that its focus on immigration crimes is diverting resources away from the prosecution of more dangerous and violent offenders. In a May 2010 Los Angeles Times opinion piece (http://articles.latimes.com/2010/may/14/opinion/la-oe-lydgate-immigration-20100514 ), human rights advocate Joanna Lydgate charged: “As petty immigration prosecutions more than tripled nationwide from 2003 to 2008, researchers at Syracuse University found that organized-crime prosecutions and drug prosecutions declined by 20 [percent], and weapons prosecutions fell by 19 [percent].”

As with the question of what is causing the decline in unlawful border crossings, however, it’s impossible to confirm a cause-effect relationship between these trends. Under the Obama administration, the existing facts demonstrate two things: The government is prosecuting more immigration crimes than ever before, and the number of illegal border crossings is at a five-year low. Politically, it’s a reality that will probably satisfy neither opponents nor defenders of the Obama administration.