McALLEN, Texas (Border Report) — Federal authorities are referring more migrant cases to criminal federal courts, putting them at the highest levels since the coronavirus pandemic began, according to new data.

Syracuse University’s Transactional Records Access Clearinghouse (TRAC) reports that the number of cases referred to federal prosecutors exceeded 2,000 in April, up significantly from just 700 cases that were referred to criminal courts at the height of the pandemic in July 2020.

The April data, the latest available, could signify a new policy or “practice decision,” by the Biden administration regarding those who try to illegally cross into the United States, TRAC researcher Austin Kocher told Border Report.

A U.S. Border Patrol agents encounters a group of adult migrants on June 24, 202, in Hidalgo, Texas. During the pandemic, most migrants were sent back to Mexico but now more cases of illegal re-entry are being referred to federal criminal prosecutors. (Sandra Sanchez/Border Report File Photo)

Crossing into the United States in between legal ports of entry is typically a misdemeanor, however, migrants who try to cross multiple times and are apprehended by law enforcement can be referred to federal prosecutors and charged with illegal re-entry, which is a criminal charge.

“If someone has already been deported before or been charged with unlawful entry they can charge them with an unlawful re-entry which is a more serious criminal charge. So they can actually file fed criminal cases in the courts,” Kocher said.

The statutory maximum term of imprisonment for illegal re-entry depends on the defendant’s prior criminal record, but in general, an individual who has no criminal history is subject to a two-year maximum, according to the U.S. Sentencing Commission.

A 10-year maximum applies if the defendant’s removal was preceded by a conviction for three or more misdemeanors involving, drugs, crimes against the person, or both; preceded by any felony; or based on certain, specified grounds.

If the prior conviction before the removal was an “aggravated felony,” the statutory maximum is 20 years.

According to the Commission’s Interactive Data Analyzer, the average sentence length for illegal reentry offenders sentenced in FY21 was 13 months.

(TRAC Graphic)

In April, there were 2,015 migrant cases referred by U.S. Customs and Border Protection officials to federal prosecutors — up 31% from April 2021, TRAC reports. U.S. Immigration and Customs Enforcement officials also send referrals, but those numbers have been fairly consistent since 2016.

Most of the federal referrals have been geographically concentrated along certain areas of the Southwest border in Arizona and West Texas, TRAC reports.

(TRAC Graphic)

In March, there were 725 cases referred to federal prosecutors in Arizona and 636 cases sent in April. There were nearly 600 cases referred in West Texas in April. That’s much more than California, which had 140 cases in April, and South Texas, where 444 cases were referred in March and 413 cases were referred in April.

Typically, migrants charged with federal crimes are held in federal criminal facilities, not migrant detention facilities, Kocher said, and these cases tend to move very quickly through the court system.

But it’s up to federal prosecutors in various border communities to pursue federal criminal re-entry charges against the migrants.

According to TRAC, there are over 1.8 million backlogged immigration court cases nationwide.