How often are migrants prosecuted criminally under 8 U.S.C. §1325 versus placed in civil removal proceedings?
Executive summary
Criminal prosecutions under 8 U.S.C. §1325 (illegal entry) and §1326 (illegal reentry) have become a large and visible share of federal criminal caseloads in recent years — at times representing more than half of all federal prosecutions and, in earlier snapshots, about 65 percent of federal criminal filings when combined with §1326 [1] [2]. Nonetheless, the statutory default for most immigration removals remains civil administrative proceedings; the exact proportion of migrants who face criminal charges versus civil removal is not fully enumerated in the sources provided and varies sharply by policy era, geography, and DHS prosecutorial referrals [3] [2].
1. How many migrants are criminally prosecuted under §1325 — the scale and trend
Dozens of thousands of §1325/1326 cases have been filed in some recent years, and advocates and national groups emphasize that prosecutions of unlawful entry and reentry dominated federal dockets: the American Immigration Council reported that combined prosecutions of §§1325 and 1326 became the most prosecuted federal offenses and cited government data showing these statutes constituted 65 percent of prosecutions as of December 2018, while civil‑rights groups and policy advocates have noted that in some years these prosecutions amounted to more than half of all federal prosecutions nationwide [2] [1]. The National Immigrant Justice Center notes that DHS makes the vast majority of referrals for immigration‑related prosecutions — roughly 99 percent of such prosecutions are referred by DHS — underscoring that criminalization is driven by agency referral practices as much as by statute [4]. Multiple reports also document policy spikes tied to programs such as Operation Streamline and the 2018 “zero tolerance” direction that increased prosecution rates and shifted large numbers of border crossers into the criminal system [5] [6].
2. How often are migrants placed in civil removal proceedings — the baseline system
By contrast, removal (deportation) hearings before immigration courts are civil administrative proceedings by design: immigration violations aside from §§1325/1326 are generally processed through civil immigration law and the immigration courts, and the Board of Immigration Appeals and DOJ materials emphasize the civil nature and different standards of those proceedings [3] [7]. DHS also retains civil tools such as fines and expedited removal authorities and continues to use those civil pathways broadly — for example, regulatory language and Federal Register actions treat many unlawful entry encounters as subjects for civil penalties under INA §275(b) (codified at 8 U.S.C. 1325(b)) and for administrative removal processes [8]. The sources indicate that if §1325 prosecutions were reduced or removed, the underlying conduct would still expose individuals to civil removal [5].
3. Why some migrants are criminally prosecuted while others face civil removal
Decisions to refer to criminal prosecution reflect policy choices, resource allocations, and local-enforcement programs rather than immutable legal necessity: DHS referral practices, DOJ priorities, and special programs (Operation Streamline, zero-tolerance) have repeatedly driven surges in criminal cases, while ordinary processing through CBP, ICE, and immigration courts produces civil removal dockets for many others [4] [5] [6]. The DOJ’s own guidance and reports note that prosecutorial discretion, courtroom capacity, and perceived deterrent goals shape filings; advocates argue those motives lack empirical deterrence support and reproduce racialized patterns [2] [1]. Legal doctrine also creates overlap: a criminal §1325 conviction typically leads to separate civil removal consequences, and the statutes and rules can bar certain collateral attacks on removal orders in criminal cases, complicating defendants’ options [9].
4. What the reporting cannot fully answer and the bottom line
The cited reporting establishes that §§1325/1326 prosecutions have been a major component of federal criminal dockets and that DHS referral practice drives most prosecutions, while also confirming that removal hearings are civil administrative processes and that civil penalties remain available [2] [4] [3] [8]. However, the provided sources do not supply a single, current percentage that divides all migrants encountered at the border or within the interior into "criminally prosecuted" versus "placed into civil removal" across the whole system in a given year; available snapshots show large portions of federal criminal filings tied to these statutes but do not translate those filings into a precise share of migrants overall [2] [1] [4]. The practical takeaway: criminal prosecution under §1325 is far more common in certain policy windows and places — and when DHS elects to refer cases — but the civil removal system remains the default legal pathway for immigration enforcement and would continue to apply even if criminal prosecutions declined [5] [3].