How has federal prosecution of 8 U.S.C. §1325 and §1326 changed across administrations since 2000?
Executive summary
Federal prosecutions under 8 U.S.C. §§1325 (illegal entry) and 1326 (illegal reentry) have shifted from a relatively constrained tool in the early 2000s to becoming the single largest category of federal criminal cases in some years, with peaks driven by administration priorities, resource changes, and policy devices such as Title 42 expulsions and “zero‑tolerance” charging directives [1] [2]. Patterns show growth under post‑9/11 enforcement, dramatic operational use and family‑separating consequences under Trump, and continued high volumes with tactical rises and falls during the Biden era — while advocacy groups, researchers, and courts increasingly challenge the statutes’ origins and harms [3] [4] [5].
1. What the laws do and how prosecution sits in the federal system
Section 1325 criminalizes unauthorized entry as a misdemeanor and 1326 criminalizes reentry after removal as a felony, and together they link civil immigration control to federal criminal courts — a dynamic that makes immigration behavior subject to imprisonment, federal court resources, and deportation consequences [2] [6]. Historically prosecutors used discretion because charging every border apprehension is infeasible, but magistrate courts and district offices have long been leveraged to process these cases en masse, producing large shares of federal docketing in some periods [1] [3].
2. Post‑9/11 and the Bush/early‑Obama rise: institutionalization of criminal enforcement
After the post‑9/11 reorganization of DHS and tighter border priorities, prosecutions for illegal entry and reentry grew substantially through the 2000s and into the Obama years as the federal government increasingly routed immigration enforcement into criminal courts rather than solely civil removal processes [3] [2]. By the mid‑2010s illegal entry/reentry composed a large share of federal prosecutions, with studies noting that these offenses had become among the most commonly prosecuted in federal court [1] [2].
3. Trump administration: zero‑tolerance and weaponization narratives
The Trump administration’s “zero‑tolerance” stance formalized aggressive criminal charging for border crossings and was widely associated with prosecutions that federalized large numbers of misdemeanor 1325 charges and felony 1326 cases, and whose implementation coincided with family separations and high public controversy; scholars and advocates describe this period as a peak in using the statutes as enforcement levers [4] [1]. Still, even under such policies prosecutions represented only a portion of total apprehensions, but they dramatically increased the visibility and human cost of criminalization [1].
4. Biden administration: fluctuations, renewed prosecution pushes, and legal challenges
Under Biden the pattern has been mixed: early continuation of Title 42 expulsions kept many prosecutions low, but later policy shifts and explicit prioritization led to significant upticks — one trackers’ analysis found a 57 percent increase in §1326 prosecutions between early and later three‑month periods of the Biden presidency, and reports show sharp month‑to‑month jumps in 2025 filings for both 1325 and 1326 [5] [7]. Concurrently, civil‑rights groups and defense advocates pushed litigation and constitutional challenges, including a Nevada judge’s ruling striking down §1326 that advocates publicized, and calls from immigrant‑rights groups to end such prosecutions altogether [8] [9].
5. What the aggregated trend means — politics, capacity and contested narratives
Across administrations the primary drivers of change are prosecutorial priorities, DHS referral practices, and broader policy levers (like Title 42 or special funding), not a steady law change; as a result, prosecutions can surge when the executive elects to prioritize deterrence or criminal enforcement and fall when expulsions or discretion reduce referrals [3] [10]. Advocacy organizations frame the increase as costly, racist, and ineffective and press for abolition of these prosecutions, while law‑enforcement and some policymakers argue prosecutions are necessary deterrence and border control tools — each side carries implicit agendas tied to court caseloads, public safety narratives, and immigration policy goals [8] [2].
6. Bottom line and reporting limits
The empirical story since 2000 is one of pronounced expansion from post‑9/11 institutionalization, an operational peak and politicized use under Trump, and oscillating but often elevated levels under Biden driven by policy choices and court processes — with growing legal challenges and civil‑society campaigns seeking to curtail prosecutions for their social costs; available reporting documents the changes in volume and practice but does not provide a single, uniform causal model that explains every spike or dip, and some finer month‑by‑month DOJ internal priorities are not fully disclosed in these sources [2] [5] [8].