[POSTED BY WLS]
Why yes, Virginia, they do. 8 USC Sec. 1226(a).
Sorry to burst the bubble of those of you who had a hard time believing that an alient without the right to remain in the US actually is allowed to remain in the US until such time as an Immigration Judge decides they are not allowed to remain in the US, and then for some added time after that.
What you should understand, however, is that Immigration Courts are operated by the Executive Branch, not the Judicial Branch. Immigration Judges are appointed by the Dept. of Justice, and ICE staffs the “prosecutors” offices of the Immigration Courts. The Immigration Judge is actually exercising the discretion conferred upon the Attorney General by Congress with respect to detaining aliens pending deportation hearings, or to release them on bail.
The issue before Immigration Courts is simply whether the person before the court has a right to remain in the US. That is NOT a criminal charge, and they are not held as suspected “criminals” pending trial.
Here’s an article that is a little outdated, but sets for some interesting numbers from around 2000 time frame on this question.
For instance — in FY 2000, immigration courts conducted approximately 216,000 deportation hearings.
Approximately 144,000 of the individuals subject to those hearings were on bail at the time.
Of those released on bail, approximately 44,000 failed to appear at their hearing, and were ordered deported in absentia.
ICE estimated that at any given time, approximately 315,000 people remain in the US who are subject to an order of removal issued by an immigration court.
At the same time, ICE has detention facilities to house only 20,000 illegals on any given day. In prioritizing those who are detained from those who are given bail, the 20,000 spaces are used to detain illegal aliens with serious criminal records, i.e., convictions for violent felonies.
Now, just to make things more complicated, there are federal criminal statutes that are prosecuted in federal district courts involving illegal aliens. This is different from immigration cases, because rather than being deported, these criminal aliens if convicted head off to federal prison. By far the most common prosecution of this kind is violations of 8 USC Sec. 1326 — called “illegal re-entry” or “being a deported alien found in the United States.”
This statute applies to anyone deported from the US after they were convicted of a crime, who then returns to the US without first obtaining the approval of the Attorney General. This statute carries a potential maximum sentence of 20 years where the crime for which the defendant was originally convicted which then led to the first deportation was an aggravated felony.
This statute applies by its terms to persons being deported for a second time, where they re-entered the US after their earlier deportation as a criminal undesireable alien.
For example, say someone who is in the country illegally commits an armed robbery. That person would be deported after serving his sentence for armed robbery. If that person then “re-entered” the country following the deportation, he would be subject to prosecution under 1326, and now subject to a 20 year prison sentence for “illegal re-entry.”
How does ICE find candidates for such cases? They troll through the jails and prison populations just as Patterico suggests they should.
These are the cases that most new federal prosecutors begin their careers handling. ICE and Border Patrol put ”holds” on any illegal alien who is about to be released from state jail or prison after serving their sentence if the inmate’s prison package showed that he had previously been in a US prison, and had been deported following his earlier prison sentence. The fact that he is once again in a US prison shows pretty conclusively he “re-entered” the US sometime after having been previously deported as an undesireable criminal alien.
When such an alien inmate is set for release from state prison or county jail, ICE or BP picks them up and takes them away to federal detention. A federal indictment is then obtained, and a federal criminal proceeding begins.
Most districts on the border have “fast track” programs for these kinds of cases. The defendants are given a plea bargain option. When I was doing them the bargain was usually for 30 months in federal prison, followed by another deportation. If they didn’t take the bargain, the sentence following trial was usually 2x that or more, depending on the alien’s criminal history. If an alien had a lengthy criminal record, they wouldn’t get the plea offer — they had to plead straight up and take the longer sentence.
This program was aimed at the most violent of the criminal aliens coming out of state prison, and it prevented them from hitting the streets. Because they have lenghty prison histories, and are illegal aliens, federal judges routinely detain them pending trial as both a flight risk and a danger.
The recognition of this program is that these criminal aliens, after being released from state prison and deported, are going to turn around and come right back across the border. So, keeping them off the street in federal prison for another 3, 4, or 10 years, serves to protect the public for whatever that period that ends up being.