Immigration and Crimes: The Intersection of Prosecution and Deportation

The number of people deported continues to rise. However you feel about immigration, the fact remains that thousands of families are affected by deportations. This becomes even more complex when non-US citizens (including Legal Permanent Residents) encounter law enforcement. The process that follows becomes even harder to navigate when the criminal process and immigration process intersect. The following will explain the procedure a non-citizen faces after an arrest.


First, a person accused of a crime is arrested. That person is then taken to a local jail where they are finger printed and booked. During this booking their identifying information is sent to the FBI, which will cross reference with the Department of Homeland Security, to check if the person appears in federal immigration records. If the suspect is found to have had an immigration record, then Immigration Customs and Enforcement (ICE) will issue a detainer for that person that allows ICE to go get that individual within 48 hours of their release from local custody. A person is typically “released” after they see a local magistrate and get bail set and bond out. Local law enforcement may then hold that person until ICE comes to get him or her.

Two scenarios can take place; 1) the person is “released” from local custody after bonding out and there is an immigration record. ICE then places a detainer and the person, once released, faces the criminal charges and serves out their sentence (either incarceration or probation), then moves on to face the deportation procedure; 2) the person gets bonded out to await a court date. Before he or she is released, ICE comes to the jail to get custody of the individual. This scenario is increasingly common, and the cycle it creates can have lasting consequences.

In the second scenario, the person moves into the immigration process as soon as ICE receives custody of them. At that point the person is detained by immigration while waiting for their court date. The immigration process of deportation begins and this process runs faster and more efficient than the criminal. It should therefore come as no surprise that the person is deported long before their criminal case is closed, regardless if that person has been convicted or is still waiting their initial court date. Once deported, the person will miss any criminal court settings, have a warrant issued for their arrest, and cannot defend or fight their case.

This creates a problem for our criminal justice system. The system cannot prosecute the person for the crime committed, the person cannot defend the case against a crime they may be innocent of committing. From the immigration side, the person cannot attempt to legalize their status with an outstanding criminal charge. This particular legal purgatory has damming consequences for those who may have legal status in the US, but face criminal charges.
No matter what side of the political spectrum, as it pertains to immigration, you agree with, the legal limbo explained above creates consequences that may not promote justice or fairness. And this in turn weakens the standard that we hold our legal system to.

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