Last updated on: 3/13/2018 | Author:

What Happens to Undocumented Immigrants Who Commit Crimes in the United States?

General Reference (not clearly pro or con)

Free Advice Legal Staff, in an article, “Consequences for an Illegal Immigrant Arrested for a Criminal Offense, accessed on Mar. 13, 2018, available at, stated:

“The consequences for an illegal immigrant who has been arrested for a criminal offense may be incarceration and fines in the criminal case and deportation in the immigration case. Once an illegal immigrant is arrested, the jail that booked them or law enforcement agency that effected the arrest will report the booking or arrest to Immigration and Customs Enforcement (ICE).

This is a typical series of events when an illegal immigrant is arrested: The illegal immigrant will be held in the jail of the city, county, or parish in which they were charged; the jail will report the illegal immigrant to ICE. ICE will indicate to the jail and the D.A. that they want the D.A. to drop the charges. The D.A. usually drops their charges. ICE officers come to the jail. They take the illegal immigrant into federal custody. They place him or her in a federal detention center. And ICE then transports the illegal immigrant to immigration court…

If the D.A. does not drop their charges right away, the illegal immigrant will remain in the local jail… No matter what the result, if the illegal immigrant is incarcerated when their criminal case is resolved, they may be subject to a ‘hold’ by ICE. This means that the local jail will notify ICE to take the illegal immigrant into federal custody. If ICE does not want to deport the illegal immigrant, it will not send its officers to take the illegal immigrant into federal custody. The illegal immigrant may be held at a federal detention center. If ICE does not take the illegal immigrant into federal custody, this does not mean that the deportation case has been dropped. The illegal immigrant will still be required to come to immigration court.”

Mar. 13, 2018

Leslie Berestein Rojas, KPCC immigration reporter, in a May 11, 2017 article, “Here’s What Happens to Undocumented Immigrants When They’re Detained,” available at, stated:

“It really depends on your case: where you’re from, what your background is, if you have a criminal record, etc. But I’ll give you some basics. Say you’re from Mexico, which shares a land border with the U.S., and you get picked up incidentally – at a worksite or wherever. You don’t have a deportation order, but you are living here illegally. If you don’t have a criminal record, chances are you’ll get sent out of the country pretty fast. You’ll be offered a ‘voluntary return,’ which means you don’t fight it. In that case, you could be transported to the border the same day…

Anyone can ask to see a judge, and anyone can say they have a credible fear of going back. In that case, officials will determine if you’re a flight risk or if you’re a security threat. At that point, they’ll decide whether to put you in detention. If you have a criminal record, chances are good that will happen. If you have a deportation order already, it could go a couple of ways. They could simply reinstate the deportation order and get you out of the country ASAP. Or, if you have been formally deported before and you’ve come back, they’ll mostly likely try to prosecute you. That means federal jail time…

[If you’re not from Mexico] there’s a good chance you’ll be detained. Pretty much the same rules apply, otherwise – you can appeal your deportation or not. If you appeal, you could be detained for some time as your case moves through immigration court. If not, they’ll send you back to your home country as soon as they can get travel documents for you, and get you on a flight…

[If you are returned to Mexico] Immigration officials will take you to the border and deliver you through a turnstile to Mexican immigration officials. Government workers there will process you and give you some information and pointers, depending on where you’re going. Then you’ll be referred to a few places where you can say, shelters like Casa Del Migrante, for example, which has received deportees for years. Then it’s up to you. Some people will try to come back, but that’s become a lot more difficult and expensive in recent years.”

May 11, 2017

The US Department of Homeland Security in a 2015 annual report, “Immigration Enforcement Actions: 2015,” available at, stated:

“ICE [Immigration and Customs Enforcement] officers base the determinations on risk to public safety, promoting compliance with removal proceedings or removal orders (i.e., reducing flight risk), and the availability and prioritization of resources. Options available to ICE include immigration detention, supervised alternatives to detention, release on bond, or release on the subject’s own recognizance, and may change at any point during the course of an alien’s time in the immigration enforcement system…

Section 238(b) of the INA [Immigration and Nationality Act] permits DHS [Department of Homeland Security] to administratively remove an alien if the alien has been convicted of an aggravated felony and did not have U.S. lawful permanent resident status at the time proceedings under this section commenced. Aliens subject to expedited removal, reinstatement of removal, or administrative removal generally are not entitled to proceedings before an immigration judge or to consideration for administrative relief unless the alien expresses fear of being persecuted or tortured upon return to his or her home country or the alien makes a claim to certain forms of legal status in the United States. The procedures for establishing the right for review by an immigration judge differ for each of these three removal processes.”


The US Code – Title 8 – Chapter 12 – § 1231 (accessed Nov. 30, 2017), entitled “Detention and Removal of Aliens Ordered Removed,” mandates:

“(A) In general:

…the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal.

(B) Exception for removal of nonviolent offenders prior to completion of sentence of imprisonment:

The Attorney General is authorized to remove an alien in accordance with applicable procedures under this chapter before the alien has completed a sentence of imprisonment… [I]n the case of an alien in the custody of the Attorney General, if the Attorney General determines that the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense related to smuggling or harboring of aliens)… and the removal of the alien is appropriate and in the best interest of the United States; or in the case of an alien in the custody of a State (or a political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the alien determines that… the alien is confined pursuant to a final conviction for a nonviolent offense the removal is appropriate and in the best interest of the State, and submits a written request to the Attorney General that such alien be so removed.”

Nov. 30, 2017 - "U.S. Code - Title 8 - Chapter 12 - § 1231"

The US Government Accountability Office (GAO), in an Apr. 7, 2005 report to Congress entitled “Information on Criminal Aliens Incarcerated in Federal and State Prisons and Local Jails,” informed:

“When the United States incarcerates criminal aliens–noncitizens convicted of crimes while in this country legally or illegally–in federal and state prisons and local jails, the federal government bears much of the costs. It pays to incarcerate criminal aliens in federal prisons and reimburses state and local governments for a portion of their costs of incarcerating some, but not all, criminal aliens illegally in the country through the Department of Justice’s State Criminal Alien Assistance Program (SCAAP) managed by the Bureau of Justice Assistance (BJA). Some state and local governments have expressed concerns about the impact that criminal aliens have on already overcrowded prisons and jails and that the federal government reimburses them for only a portion of their costs of incarcerating criminal aliens…

At the federal level, the number of criminal aliens incarcerated increased from about 42,000 at the end of calendar year 2001 to about 49,000 at the end of calendar year 2004–a 15 percent increase. The percentage of all federal prisoners who are criminal aliens has remained the same over the last 3 years–about 27 percent. The majority of criminal aliens incarcerated at the end of calendar year 2004 were identified as citizens of Mexico. We estimate the federal cost of incarcerating criminal aliens–Bureau of Prisons (BOP)’s cost to incarcerate criminals and reimbursements to state and local governments under SCAAP–totaled approximately $5.8 billion for calendar years 2001 through 2004.”

Apr. 7, 2005

The US Government Accountability Office (USGAO), in an Oct. 1998 report entitled “Criminal Aliens – INS’ [Immigration and Naturalization Service] Efforts to Remove Imprisoned Aliens Continue to Need Improvement,” stated:

“[S]everal major laws were passed between 1986 and 1996 that provided for the initiation of removal proceedings for certain criminal aliens while they were incarcerated, expanded the types of crimes for which aliens could be deported, and sought to facilitate the expeditious removal of those aliens found to be deportable…

Currently, INS [U.S. Immigration and Naturalization Service] may release deportable criminal aliens, including aggravated felons, from custody only if the aliens were lawfully admitted to the United States, or were not lawfully admitted to the United States but the designated country of removal will not accept the aliens, and the aliens satisfy the Attorney General that they will not pose a danger to the safety of other persons or of property and that they are likely to appear for any scheduled proceeding.”

Oct. 1998 - "Criminal Aliens - INS' Efforts to Remove Imprisoned Aliens Continue to Need Improvement"

The US Department of State (USDOS), in the section entitled “Prisoner Transfer Treaties” on its website (accessed Aug. 8, 2007), offered the following:

Under US law [U.S. Code – Title 18 – Chapter 306 – § 4100 46 KB] foreign nationals convicted of a crime in the United States, and United States citizens or nationals convicted of a crime in a foreign country, may apply for a prisoner transfer to their home country if a treaty providing for such transfer is in force between the United States and the foreign country involved. The United States has 12 bilateral prisoner transfer treaties in force in Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico, Micronesia, Palau, Panama, Peru, Thailand and Turkey.

In addition, the United States is a party to two multilateral prisoner transfer treaties: The Council of Europe Convention on the Transfer of Sentenced Persons (Strasbourg Convention), [and] The Inter-American Convention on Serving Criminal Sentences Abroad (OAS [Organization of American States] Convention). The Convention entered into force for the U.S on June 24, 2001. [it] is in force in the following countries: Brazil, Canada, Chile, Costa Rica, Mexico, Nicaragua, Panama, the United States and Venezuela.”

Aug. 8, 2007

Margaret H. Taylor, JD, Professor of Law at Wake Forest University School of Law, and T. Alexander Aleinikoff, JD, former Senior Associate at the Carnegie Endowment for International Peace, in a 1998 Carnegie Endowment publication entitled “Deportation of Criminal Aliens: A Geopolitical Perspective,” wrote:

“Criminal aliens’ first contact with the INS now usually comes while they are incarcerated in a state prison. Through an enhanced Institutional Hearing Program (IHP), states cooperate with the INS to commence deportation proceedings for foreign-born inmates before they get out of prison… As the Institutional Hearing Program becomes more effective, state prison systems increasingly are releasing foreign-born offenders directly to the custody of the INS. This process ensures that many more criminal aliens are removed from the country. It also might motivate states to release inmates who would otherwise remain incarcerated in exchange for immediate deportation.

Criminal aliens who have been sentenced to a term of incarceration in the United States cannot be removed by the INS until they are released from prison. But the new immigration law explicitly authorizes the INS to deport nonviolent offenders who are not otherwise eligible for release from incarceration when early removal ‘is appropriate and in the best interest’ of the United States or the state where the alien is incarcerated.”