Illegal Aliens Get Released on Bail While Awaiting Deportation Hearings?????
[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Here’s an article that is a little outdated, but sets for some interesting numbers from around 2000 time frame on this question.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.
WLS,
Thanks for a timely and good explanation on this topic.
Also, could you recheck the link to the article you mentioned? I can’t get it to load using Firefox or IE.
DRJ (bfe07e) — 8/11/2007 @ 7:44 pmAs discussed in the 2004 article linked from the link, there was a pilot program requiring some non-violent aliens awaiting trial to wear ankle bracelets. Why not everyone who’s released?
2004 article (0c89cb) — 8/11/2007 @ 7:49 pm44,000 of 140,000 abscond?
This is insanity. Surely you agree.
Patterico (e89393) — 8/11/2007 @ 8:04 pmThe 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.
Yeah. The U.S. Supreme Court, the defender of the Constitution, has determined that a defendant asserting his right to having the government prove his guilt beyond a reasonable doubt is liable to a doubling of his sentence for that temerity.
nk (119c34) — 8/11/2007 @ 8:40 pmAnd how the fuck does it protect the public and the taxpayers? The guilty accused takes the deal just to be out on the street earlier to commit more crimes. The innocent accused gets to have prison space and guards wasted on him. Aw, I get it. The prosecutor gets his job made easier. (Sorry, WLS, but the trial penalty is an issue I get emotional about. The federal government pioneered it and Rehnquist, may he rest in peace, made it constitutional.)
nk (119c34) — 8/11/2007 @ 8:49 pmI agree with you that is extremely foul, nk. Mark Steyn had what I considered to be a brilliant article on this score about the Conrad Black trial (famous British newspaperman who like Steyn was born in Canada).
Just obscene.
Patterico didn’t think much of Steyn’s position, but I did.
I can’t find the article from Steyn’s website or I’d share it. Point was he will spend the rest of his life in prison, while his slimy former right-hand man, David Radler, who admitted to a crime (because he was nailed to the wall on something Black knew nothing about) agreed to be a witness and will spend 6-months at a British Columbia country club prison with a golf course.
Aside from the fact that neither Steyn nor I think Black committed any crime and the U.S. Attorney’s prosecution was malicious and absurd, including an unprecedented abuse of extraterritoriality, the sentence differential is grotesque.
Christoph (92b8f7) — 8/11/2007 @ 9:43 pmThis one, Christoph?
http://tinyurl.com/23yl65
What do you suggest prosecutors use instead of plea bargains?
Full trial for every defendant?
alphie (015011) — 8/11/2007 @ 10:19 pmIt was probably Rehnquist’s worst opinion, Christoph. His reasoning was that a defendant who did not plead guilty was doing it because he wanted to stay in the criminal milieu. Unbelievable but still the law of the land.
nk (119c34) — 8/11/2007 @ 10:25 pmThat’s it. Great find, alphie, thanks.
I think plea bargaining is a fact of life and there’s no way around it: It’s horse trading.
If I was a prosecutor or defense lawyer, I’d use it.
But… the case you helpfully found is an extreme perversion of justice above the norm.
So it’s a touchy issue and it’s on a scale… I don’t know that there’s a black and white answer. Just that U.S. attorneys, particularly federal ones, sometimes go overboard and the Black case is a travesty.
IMHO
Christoph (92b8f7) — 8/11/2007 @ 10:28 pmThat was his reasoning? Wow.
Christoph (92b8f7) — 8/11/2007 @ 10:28 pmNo, alphie, you ridiculous asshole. Just no trial penalty. Plead guilty, be found guilty the sentence should be the same. Need more judges and prosecutors? Cut all sentences to one-third of what they are now and use the money saved from prison guards for police, prosecutors and judges.
nk (119c34) — 8/11/2007 @ 10:33 pmIn this one case, I think alphie was being reasonable and helpful. Yet it’s kind of like the boy who cried wolf. The one time you’re on the level, no one believes you.
:-p
Christoph (92b8f7) — 8/11/2007 @ 10:34 pmEven a stopped clock is right twice a day!
alphie (015011) — 8/11/2007 @ 10:45 pmSorry, alphie. My excuse is that I’m way up past my bedtime.
Under current U.S. law, acceptance of my guilt should mitigate my culpability. That my victim still has the same injury regardless of whether I regret it or not is irrelevant.
nk (119c34) — 8/11/2007 @ 10:58 pmPatterico dismissed his reasoning out of hand as soft headed and not worth debating or something like that. Steyn’s 6-substantial points:
…I agree with.
Patterico doesn’t and as a prosecutor he brings a different perspective to the table. I just don’t know what to criticize in regards to Steyn’s reasoning.
Can anyone help me out?
Christoph (92b8f7) — 8/11/2007 @ 11:07 pmTomorrow, Christoph. Good night, everyone.
nk (119c34) — 8/11/2007 @ 11:17 pmnk,
I think your looking at it backwards. The sentence isnt increased if someone rejects a plea, its decreased if they accept the plea. The system rewards someone who doesnt put the state through the cost of a trial. If the sentence stayed the same why would any criminal plead out? Even w/ overwhelming evidence most would insist on trial out of spite.
chas (3385c2) — 8/12/2007 @ 12:49 amNK, there are some reasonable arguments to be made for that including acknowledgment of wrongdoing and remorse being weighted in sentencing.
On the flip side, innocent defendants can be browbeat into accepting a plea for fear of what might happen at and on the way to trial. Let’s not forget that it’s not just “trial penalty” we’re talking about, but the a plea bargain often involves lesser charges than those threatened to be tried.
How many truly not guilty people will take a plea on a lesser charge because they don’t qualify for a PD, yet still can’t reasonably afford thousands and thousands to go to trial and are afraid of the risks if they do?
Pablo (99243e) — 8/12/2007 @ 4:36 amYou make a lot of good points chas and Pablo. Plea bargains are a fact of life and all my ranting won’t change it. As a practical matter, a competent defense attorney should know which judges impose a trial penalty and SOJ them (Illinois allows you to knock out two judges at the time of arraignment without cause and I believe so does California), and appeal grossly disparate sentences (real-life example, codefendant who pleaded guilty got eleven years, defendant got thirty reduced to fifteen on appeal).
Christoph, I think there’s merit to Steyn’s first point as I have been ranting above. But his remaining ones are based on exaggerations and I would even say urban legends.
nk (119c34) — 8/12/2007 @ 6:53 amPlea Bargins are used in criminal cases – I thought these were administrative cases – but I’ve been wrong before?
EricPWJohnson (92aae0) — 8/12/2007 @ 8:18 amIn these cases they’re people who are involved with both systems, Eric. They’re both illegal immigrants and alleged criminals.
Pablo (99243e) — 8/12/2007 @ 8:35 am“That is NOT a criminal charge, and they are not held as suspected “criminals” pending trial.”
Shouldn’t that actually be a criminal charge with subsequent criminal trial to follow?
Being in the country illegally is essentially the same as being in someone’s house illegally except that one seems to be criminal and the other just ‘bad manners’.
Lord Nazh© (f1a81c) — 8/12/2007 @ 12:18 pmnk, this is an urban legend or a fact?
Christoph (92b8f7) — 8/12/2007 @ 2:46 pmCut all sentences to one-third of what they are now
All??
Hmmmm… last week my office got a jury trial verdict of guilty on a man who beat to death a 4 month old infant (19 fractures, ribs/skull/arm … some in various stages of healing)… his exposure at sentencing is 25 to life.
You want that guy out in 7 years?
Darleen (187edc) — 8/12/2007 @ 3:13 pmChristoph #23,
Well that’s just plain silly and even disingenuous on Mr. Steyn’s part. In the English system the judge “sums up” for the jury. Unlike the American system where the judge coldly instructs the jury as to the law, the English judge commingles law and evidence and very broadly hints how the jury should rule.
Moreover, in the American system
1. The jury is instructed that the arguments are neither evidence or law (so take a nap if you want);
2. The defendant is presumed innocent at all times so the prosecution’s burden of proof is a double one — it has the burden of going forward with the evidence and the burden of persuasion. In horse-racing terms, it has to stay and finish ten lengths ahead. (If this sounds like I’m sticking up for prosecutors, think again. I love putting this burden on them.)
3. You’d be surprised how often closing arguments are waived.
Every civilized legal system allows the defendant the last word.
nk (119c34) — 8/12/2007 @ 6:46 pmI won’t accuse Mr. Steyn of pulling that one out of his hat but I have already pointed out how it’s not really true in the English system. In the Continental Napoleanic Code system, the other “civilized system” I recognize, the defendant is presumed guilty. The prosecutor is a judicial officer, for all purposes a judge, and actually sits on the bench along with the presiding judge and one other. There, the accused not only gets the last word as Mr. Steyn says, he also gets the first word. Because, being presumed guilty he has the burden of going forward with the evidence even though the burden of persuasion remains on the government.
Darleen # 24,
No. I want immunity from prosecution and access to him. I’ll bring my own blowtorch.
Come on, you know what I was getting at. One maximum security prison guard will protect us, at most, from three criminals. With the guard’s salary, a policeman will prevent hundreds of crimes; a prosecutor and a judge will lock up dozens of criminals.
nk (119c34) — 8/12/2007 @ 6:56 pmgaol = archaic spelling for jail, I’m using to cover all form of legal confinement, whether it’s a prison or jail.
nk, there are already too many criminals for whom gaol is a revolving door. What you propose would make the door revolve faster. In the periods the criminals are outside of gaol, they will commit multiple crimes before being caught, tried, and gaoled again. I do not consider this an improvement.
LarryD (feb78b) — 8/13/2007 @ 5:59 amLarryD,
I partly agree. There is a class of criminals, say even two-legged animals, for whom deterrence does not work and the only solution is incapacitation by death or long-term imprisonment.
However, for that class of criminals for whom deterrence does work increasing certainty of punishment decreases the necessity of severity of punishment. And for the vast majority of criminals, who are stupid, cowardly coyotes commiting crimes of opportunity, a cop on the street corner is worth a hundred prison guards.
nk (119c34) — 8/13/2007 @ 7:40 amOh boy what a way to show that some judge is not firing on all cilleders
krazy kagu (2f4b46) — 8/13/2007 @ 11:41 amIn defense of plea bargaining these cases:
First, the idea that there is a “trial penalty” attached to these kinds of cases simply reflects ignorance of the system.
These are defendants who are “found” sitting in a state prison. They are illegal. They have been deported previously. They were convicted of a felony in state or federal court PRIOR to their deportation.
So, just how does one of these defendants mount a claim of “innocence”?? Mistaken identity? You mean the mug shot and fingerprint in his prison package relating to his earlier conviction aren’t really him? Somehow his high school yearbook photo got mixed into another guy’s prison package?
And, the matching fingerprints and photo from his prior deportation case aren’t him either?
That pretty much does away with the “I’m innocent and I want a trial” dodge.
Now, how do you maximize the NUMBER of such defendants you can process in a given month or year? Remember, the more you process through the federal courts, the more end up in prison with additional prison sentences, meaning they aren’t sent back to the border crossing, where within 48 hours they might be turning around and heading back to where they were before.
So, how do you maximize that number? By taking every case to trial? Granted, these are short trials, but even the shortest trial in this kind of case will take a full day. So, if a prosecutor did one a day, he might get 15-20 a month, and 200 a year.
On the other hand, when you plea bargain them out, a good prosecutor can do 100 a month — and in districts like the Central and Eastern Districts of California, and the District of Arizona, there are plenty of such defendants.
What does the plea bargain entail? Simply, the defendant agrees to plead guilty to one count of illegal re-entry, and one count of being an illegal alien in the country. The first count, without the filing of the defendant’s prior aggravated felony conviction, carries a sentence of 24 months. The second count carries a sentence of 6 months, and the defendant agrees in the plea agreement to serve the sentences consecutively, for a total of 30 months.
What happens if a defendant doesn’t agree to plead guilty? The prosecutor files the same charges, but prior to trial he also files with the court a notice of the defendant’s prior conviction for an aggravated felony. The maximum potential penalty goes up from 24 months to 240 months as a result. Most of the time the guideline range for defendants in these cases was around 8-10 years depending on their criminal history.
Obviously, not every criminal alien defendant received the plea offer. If the prior aggravated felony for which they had been convicted was a crime of violence, they didn’t get the plea offer. The best they could do was to plead guilty, and get the reduction for acceptance of responsibility called for in the sentencing guidelines passed by Congress.
Most of the criminal aliens handled in this fashion had prior convictions for drug offenses or property crimes like car theft or burglary.
But, in my old office, two new prosecutors doing almost nothing but illegal re-entry cases would get 1500 to 2000 guilty pleas a year. That’s 1500 to 2000 convicted felons who were kept in jail 30 months longer than would have otherwise been the case.
wls (2458d8) — 8/13/2007 @ 9:09 pm