A person living in the United States illegally was recently booked into the Aiken County detention center – a repeat DUI offender – and he had just been deported less than eight months earlier. But, he came back.
“We see those,” said Capt. Nick Gallam, jail administrator. “We'll see them come back multiple times.”
So, what happens when someone who's in this country illegally gets arrested and charged with a crime? Do they face the full brunt of the U.S. criminal justice system, or do they get immediately deported? Do they have the right to remain silent, the right to an attorney and the right to a trial?
Verifying a defendant's citizenship status typically occurs during booking at the jail, according to Gallam. In the past, they have had to manually run an inmate through the National Crime Information Center to verify it.
“Anybody that was born outside the United States or was not currently a United States citizen or didn't have a Social Security number, we would run them to see if they were wanted for immigration purposes,” he said.
Now, the process is completed with a “live scan” of a defendant's fingerprints, which are submitted to the S.C. State Law Enforcement Division and then to the U.S. Department of Homeland Security and Immigration and Customs Enforcement, or ICE.
ICE will then decide whether or not to place a hold on an inmate; if so, it has 48 hours to pick the inmate up, excluding weekends and holidays.
Gallam said there seems to be a “continuum” on which federal officials decide to place a hold on an immigrant living here illegally charged with a crime.
“At one point, it was basically anything – if somebody got arrested, we'll put a hold on them,” he said. “Now, it's more violent crimes.”
According to Second Circuit Solicitor J. Strom Thurmond Jr., a magistrate cannot deny someone bond based on their immigration status.
“Someone can be arrested and make bond unless ICE places that hold on them,” he said. “One's immigration status impacts very little how their case is handled here.”
Moving the case of a defendant who is living in the U.S. illegally through the judicial system often involves the use of a translator, which can slow down the process, according to Thurmond. The defendant is still given the same rights as anyone else charged with a crime in the United States.
“One's immigration status does not allow them to escape justice here,” he said. “If someone is prosecuted here, convicted here, they would serve their sentence here, and that ICE hold would follow them to the Department of Corrections.”
In some cases, the charge or sentence against a defendant may be reduced in order to expedite deportation.
“In many cases, it's a judgment call for us in pursuing a particular sentence with the reality of what it costs to incarcerate that person here, knowing that they will be returned to their country of origin as soon as that sentence is completed,” Thurmond said. “It's a case-by-case basis – if it's a non-violent offense or we shorten a sentence knowing that ICE hold will be placed on that person and knowing that they will be deported to their country of origin.”
Occasionally, ICE can ask the state to drop the charges altogether, but Thurmond said it's all “fact-driven and case-driven.”
If ICE places a hold on an inmate, that hold follows them through the adjudication process. Once they are in the custody of ICE, they then go through the immigration court system.
According to Vincent Picard, a spokesman for ICE, an immigration bond may be granted by either ICE upon review of a defendant's case or by an immigration judge following a bond hearing. Immigration bonds generally range from $5,000 to $20,000 and are meant to ensure a defendant's compliance with immigration proceedings.
“While immigration bonds are not directly impacted by pending criminal charges, ICE may cancel an immigration bond following an alien's criminal conviction,” Picard said. “Commercial bond services are available for immigration bonds.”
An immigration bond is similar to a criminal bond in terms of reporting requirements, and it may be revoked if a defendant fails to comply with the terms of the bond, Picard said.
Immigration cases are adjudicated in the Executive Office for Immigration Review, an entity of the U.S. Department of Justice. A defendant goes before a judge to make their case for why they should remain in the U.S., and the judge makes a decision.
Picard said there are several circumstances under which a defendant is deported without being able to see a judge.
“The most common are reinstatements of previous final orders of removal, expedited removals of aggravated felons convicted of crimes involving moral turpitude and administrative removals of aliens arrested near the border after a recent illegal entry,” he said.
Reentering the country illegally after being removed under a final order of removal is a felony offense under federal law. Picard said the violator would still be subject to that removal order, and the agency would simply reinstate the original removal order.
“In the case of aliens who have been accused of crimes in the United States, an important fact is that immigration enforcement is secondary to their criminal justice proceedings,” he said. “ICE works carefully with prosecutors at all levels of government to ensure that justice is served in a criminal case before an alien is removed from the country on immigration charges.”
Teddy Kulmala covers the crime beat for the Aiken Standard and has been with the newspaper since August 2012. He is a native of Williston and majored in communication studies at Clemson University.
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