Illegal immigration to the U.S. has long been treated mostly as a civil affair rather than a criminal matter, with the consequence being deportation rather than conviction and jail time.
But the law has long allowed for criminal prosecutions against those who jump the border, and President Trump is increasingly harnessing that power, delivering more severe consequences to those who would test the country’s borders.
The Justice Department set a record in June with more than 3,000 felony cases brought against migrants who prosecutors charged with illegal reentry, meaning they were caught sneaking back in after having been deported.
And prosecutors brought another 3,200 cases for simple illegal entry in June, which isn’t a record. But it is more than 50% of all Border Patrol arrests last month, which is a record rate of prosecutions. By contrast, in 2023, at the height of the Biden border surge, that rate never reached 1%.
Experts said criminal penalties are particularly effective as a deterrent because they can bring jail time, keeping migrants locked up when they want to be out working.
The move to criminalization is a major reversal for the government and a serious defeat for immigration advocates and Democrats, who have argued that illegal immigration should be decriminalized altogether.
During the 2020 campaign, nearly every major Democratic candidate embraced decriminalization — including the eventual winner, President Biden. They argued illegal immigrants needed to be met with compassion, not charges.
Mr. Trump has gone the other way.
The Justice Department, in a statement to The Washington Times, celebrated the increases, saying it is “using all available investigative and prosecutorial tools” to combat the “invasion of illegal immigration.”
The department said the prosecutions are proof that the administration is going beyond the border to tackle illegal immigration in the interior.
Indeed, that’s where many of the illegal reentry cases are made.
Prosecutors in the Northern District of Georgia were regularly bringing only a few cases a month under Mr. Biden. In May, they brought 45, and in June, another 38. Massachusetts went from one a month in late 2024 to 43 in June.
But border districts remain the workhorses.
New Mexico has seen its illegal reentry cases go from fewer than 100 a month in late 2024 to 245 in May and 277 in June. Southern California rose from about 100 cases a month to 365 in June.
Arizona, though, has seen a drop, from nearly 1,000 cases in October to about 500 cases in June.
The U.S. attorney’s office in Arizona didn’t respond to an inquiry for this story.
Jonathan Fahey, a former assistant U.S. attorney in Virginia who served as acting director at U.S. Immigration and Customs Enforcement at the end of the first Trump administration, said reentry cases are a particularly good tool to use against sanctuary cities.
That’s because those cities, while refusing full cooperation on civil deportation matters, almost always do cooperate on criminal cases. So bringing a criminal charge is a way to get sanctuaries to help out on specific cases.
Making the case is usually a matter of paperwork — prove someone was deported, and the fact that they’re back in the U.S. is literally the violation itself. Mr. Fahey said 99% of the cases end in convictions — usually plea deals that even include a stipulation that the migrants won’t challenge their deportations once their time is served.
“They’re a great way to get a conviction, a great way to get a criminal off the street and a great way to remove them from the country in an expeditious way,” Mr. Fahey said.
Andrew “Art” Arthur, a former immigration judge, said the prosecution approach is a marked departure from the Biden administration, which itself had moved from Mr. Trump’s first-term deterrence strategy to a more permissive approach.
Mr. Arthur, now at the Center for Immigration Studies, said there are several ways to deter border jumpers, but prosecution is the most powerful.
“If I get deported, I get deported. I go back and try again,” he said. “But when it comes to prosecutions, now you’ve got a federal conviction. … If you’re coming here illegally to live and work, being in a federal penitentiary for two years isn’t going to allow you to do that.”
Two years is the maximum penalty for a second-time illegal entry, or a first-time illegal reentry without any extenuating circumstances. Those who come back after amassing serious criminal records can face substantially more jail time.
In reality, rank-and-file offenders are given smaller sentences — usually time served.
For illegal entry, that works out to days. For illegal reentry, it can be several months.
But repeat offenders and those with criminal records do end up serving years behind bars.
Laws criminalizing illegal immigration have detractors, some of whom say the criminal statutes have their roots in racist anti-immigrant legislation from the 1920s.
A federal judge in Nevada agreed, ruling in 2021 that the law against illegal reentry was too racist to survive constitutional scrutiny.
That decision was overturned by a federal appeals court.
Now Republicans are hoping to go the other way.
GOP leaders had planned a vote in the House this month on legislation to stiffen penalties on illegal immigration, hiking maximum sentences for illegal entry and illegal reentry and imposing a mandatory 10-year minimum sentence on someone who’s garnered two previous criminal convictions for illegal reentry.
GOP leaders postponed action on the bill last week amid disagreements over how to handle unrelated demands for information from dead child sex offender Jeffrey Epstein.