Referrals for Criminal Prosecution of Immigration Violations

Published Jul 29, 2025

The number of individuals criminally prosecuted for immigration violations continues to climb.[1] Most of these are for noncitizens caught by Border Patrol (BP) agents attempting to enter the U.S. between ports of entry. These individuals are increasingly being sent by Customs and Border Protection (CBP) to federal prosecutors to be criminally prosecuted before they are deported.

The number of individuals criminally prosecuted for illegal entry and related violations jumped from 3,344 in February to 4,566 in March. It has continued to rise in April and May, reaching 5,738 defendants charged in April and climbing to 6,885 prosecutions filed in May 2025. The number of BP apprehensions during this same period was essentially little changed. A total of 10,357 BP arrests occurred in May 2025.[2] See Figure 1.

Border Patrol referrals to federal prosecutors were much higher during the first Trump administration at a time when large increases in border arrests were taking place. Indeed, six years ago in May 2019 the number of monthly apprehensions by Border Patrol agents had reached 133,541.[3]

Individuals then and now were usually quickly prosecuted within days,[4] typically pled guilty, and ended up spending little time behind bars. The median prison sentence in March 2025 was just one month and fell to zero (0) months in April and May 2025. The usual sentence was “time served,” which usually involved only a few days behind bars.

These results are based on TRAC’s analysis of the latest case-by-case records from internal files covering each criminal referral received by U.S. Attorneys’ Offices. These records record the agency making the referral and were obtained by TRAC through a court order issued under the Freedom of Information Act.

Odds of Criminal Referrals: ICE versus CBP

In contrast, relatively few individuals arrested by Immigration and Customs Enforcement (ICE) are being referred for criminal prosecution. ICE reports it arrested 28,887 in May 2025, while the Border Patrol reports arresting just 10,357. Figure 2 below compares the difference between ICE and CBP for their respective number of arrests versus referrals for criminal prosecution during May.

Given much larger numbers of arrests, the reasons why ICE makes fewer criminal referrals remain somewhat unclear. In fact, while ICE reports its arrests climbed in May, the actual number of ICE criminal referrals the same month was just 1,344 and had dropped by 16.5 percent from their number in March. While ICE withholds counts, ICE is arresting many noncitizens who actually entered the country legally and no grounds exist for a criminal referral. They may have legally entered as students, been authorized to enter (“paroled”) or legally entered by a myriad of other ways noncitizens are authorized to enter the U.S. Many other individuals enter the country to visit or to work, but ended up overstaying. These individuals are not subject to criminal prosecution when they overstay their visas.

The Odds of Criminal Referral: BP Southwest Border Arrests

Almost all CBP referrals—some 97 percent—were received by one of the five U.S. Attorneys' Offices along our country’s southwest border with Mexico. CBP reports it makes around 85 percent of its apprehensions there, and only 15 percent along our northern and coastal borders.

Comparing criminal referrals received by these 5 U.S. Attorneys' Offices (Cal S, Arizona, New Mexico, Texas W, Texas S) with CBP reports of its arrests and criminal referrals along our southern border, TRAC estimates that three-quarters of adults (77%) apprehended by Border Patrol agents in May 2025 were referred for criminal prosecution.[5] This proportion rose from 55 percent in March, to 64 percent in April and 77 percent in May. See Figure 3.

During the first Trump administration and its “Zero Tolerance” policy which used criminal prosecution to force separation of children from their parents as a deterrence measure, the odds of criminal prosecution never reached these levels. For example, in May 2018 an estimated 32 percent of CBP apprehensions along the southwest border were prosecuted. Of course, the sheer volume of apprehensions then was much higher.

Dominance of Immigration Often Leaves Other Federal Crimes Ignored

This Administration’s almost single-minded focus on immigration has meant that the investigation and prosecution of all of the thousands of other federal criminal statutes the federal government is responsible for enforcing are receiving less attention. For example, “FBI agents were told…to start devoting about one-third of their time…on illegal immigration.”[6] Already substantial drops in the prosecution rates for white-collar and other crimes such as drugs are occurring.[7] Yet, the Administration does not discuss any potential downsides of taking resources away from combating serious harms inflicted on the public by individuals committing drug offenses, violating federal statutes regulating the purchase and use of firearms, or defrauding individuals out of their money and other sources of their well-being.

During May 2025, the CBP and ICE together referred 7.0 times more cases to federal prosecutors than ATF, and 7.3 more cases than the DEA. CBP and ICE together referred 3.3 times more cases than the FBI.

The picture is sobering when one takes into consideration that 98 percent of all CBP and ICE referrals end up being prosecuted, while in May 2025 the ATF and the DEA each had about one out of four of their referrals declined and the FBI in May 2025 had nearly four out of ten (39%) of its referrals turned down and not prosecuted by U.S. Attorneys' Offices.

Immigration prosecutions, while numerous, usually are relatively straightforward. These prosecutions historically have not actually dominated the time and effort spent by federal prosecutors [8] or the country’s criminal investigators. Yet since Trump assumed the presidency there has been a substantial transfer of federal agents and resources, such as the FBI and others, to enforcing immigration matters.

But there is no free lunch. In an era of growing budget deficits, focusing time and energy on just immigration as a practical matter is almost certain to mean there is less time and resources to spend on other federal law enforcement needs.