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Why can't we prosecute every illegal immigrant?

Due to the sheer number of arrests made every year by the Border Patrol, Immigration Courts are just as bogged down in procedure, legal wrangling, and politics as any other criminal court

When meeting with local police officers and deputies in the field, I often get the question “why aren’t all illegal immigrants charged criminally” or “why aren’t they all deported?”

Unfortunately for me, the issue is so extensively complicated that to adequately explain the reasons ‘why’ or ‘why not’ would bore most people to tears. Fortunately for those officers and deputies though, I regale them with the stern, monotone, officious, and yet thankfully-brief response: “It is an imperfect system.”

An Imperfect System
I know what you’re thinking. This is why the general public is so distrustful of federal officials sometimes — issuing statements using nondescript, broad strokes, although they take far less effort and forethought for the speaker, leave the listener feeling a little cheated. And I feel bad sometimes because I feel like I owe a better answer than that to my brothers and sisters in blue, tan, gold, and green. That answer — while fascinating from a purely legal and technical perspective — leaves much to be desired.

On the few occasions that I have tried to explain it in further detail, an urgent call for service comes out of nowhere over the radio and a grateful officer or deputy grins and issues an equally stern, monotone, officious, and yet thankfully brief: “I’ve gotta roll, sorry...”

Title 8 of the United States Code
Believe it or not, there is an actual explanation that requires equal parts curiosity and patience to understand. I’ll try and keep it simple, because trust me, even for those of us tasked with enforcing the myriad immigration laws under Title 8 of the United States Code, it’s a learning experience every single day — often, no one arrest is the same as another.

First, let’s delve into the notion that every illegal immigrant would be charged criminally.

As anyone who read my P1 First Person essay knows, a subject arrested in violation of 8USC1325 (Improper Entry By Alien) “may be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.”

For the purposes of this discussion, let’s assume this is a first-time offender and therefore, he/she is only charged with the misdemeanor. Every arrest is — at a minimum — a misdemeanor and therefore, would require the usual trip through the criminal justice system. We’re talking arrest, arraignment, bail/bond hearing, prelim, pre-trial conference, etc. Sounds easy enough... or is it?

The Numbers Are Enormous
The FBI’s Uniform Crime Statistics for the NYPD in 2007 shows a total of 95,244 arrests, or approximately 260 arrests per day. The FBI’s Uniform Crime Statistics for the USBP in that same year shows a total of 960,756 arrests, or approximately 2,632 arrests per day.

Can anyone imagine just how large the docket would be for those arrest numbers? Can anyone imagine just how much infrastructure would then be necessary to accommodate the arraignments alone? When you fold in the lengthy process of bail/bond hearings, pre-lims, pre-trial conferences, etc., it approaches the realm of impossibility. The simple fact is that the problem is too enormous — the arrests numbers too large, the lack of manpower and infrastructure too stark — to address within the normally-observed criminal justice paradigm. Therefore, an administrative framework was developed in order to provide a mechanism by which many of the subjects arrested would be granted a type of ‘diversion’ — much like many states have done with narcotics offenders.

Voluntary Return, Formal Removal, and Deportation 
For immigration purposes, this diversion is termed a “Voluntary Return.” Voluntary Returns are most common among non-criminal subjects where the Border Patrol has made the arrest, submitted and verified the subject’s fingerprints in IAFIS, thoroughly reviewed any existing criminal record (if any), and determined whether or not a Voluntary Return to the subject’s country of origin is warranted, without penalty to that subject. Through this process, subjects waive their rights to a formal hearing and agree to pay removal expenses. By doing so, they can generally reapply for admittance without consequence. The result of this solution is that it allows each Border Patrol Station to adjudicate a majority of their arrests ‘in-house’ at the respective patrol station, to process each subject arrested accordingly, to determine whether each individual subject qualifies for a Voluntary Return, subsequently then to transport a majority of these subjects back to the border.

In many other cases, however, for subjects with a criminal history, it will require that the subject appear in front of an Immigration Judge, concurrent with what’s termed a “Formal Removal Hearing.” If the IJ rules that the subject then be “Deported,” a formal order is issued and that subject is removed from the United States and barred from re-entry, via legal channels or otherwise, for periods of five, ten, twenty years — or for life.

For this, Immigration Courts were established and are used throughout the United States. On paper, it all sounds well thought out, but the reality is that due to the sheer number of arrests made every year by the Border Patrol, even this system is taxed well beyond its limits. Because every subject has the right to appeal their “Order of Removal,” this system is just as bogged down in procedure, legal wrangling, and politics as any other criminal court. Just take a gander at the arrest statistics for the Border Patrol again and think about the sheer numbers that we’re discussing. It’s a credit to all of the hardworking Border Patrol Agents that the system continues to drive forward day after day, week after week, year after year.

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