Fox News accused the government of willfully endangering Americans by releasing undocumented immigrants who commit sex crimes instead of trying and deporting them. In fact, immigrants who commit crimes are arrested and tried in a criminal court before potentially going through deportation proceedings in immigration court.
On the September 17 edition of The O'Reilly Factor, host Bill O'Reilly brought on Fox's legal analysts Kimberly Guilfoyle and Lis Whiel to discuss a recent GAO report that found that 2,837 undocumented immigrants who were convicted of a sex offense were released under Immigration and Customs Enforcement (ICE) supervision as of September 2012. O'Reilly called the release a "frightening situation" and asked why the government couldn't "get these people tried or deport them in six months." Guilfoyle blamed the government's "inefficiency" in administering justice and "releasing these predators back into the street." They all agreed immigrants should be subject to tougher standards for criminal conduct than Americans.
But immigrants who commit crimes still face criminal repercussions. Undocumented immigrants who are arrested for a crime must go through the criminal justice system -- similar to when an American is arrested for a crime -- and can serve jail time or pay fines for those crimes. ICE then holds a separate hearing to determine whether the immigrant should be subject to removal following jail time.
In some cases however, immigrants who are ordered deported but whose country of origin refuses to take them cannot be held for longer than six months following prison time. That is what the Supreme Court ruled in the 2001 case Zadvydas v. Davis: ICE cannot detain immigrants for more than six months "after the issuance of a final order of removal if removal is not significantly likely in the reasonably foreseeable future." This is a basic issue of due process, which the Supreme Court has long held "applies to all 'persons' within the United States, including aliens whether their presence here is lawful, unlawful, temporary, or permanent."
Moreover, in contrast to Fox's suggestion that all those released had disappeared into the country, the GAO study estimated that 60 sex offenders who were still under ICE supervision failed to register as sex offenders. GAO explained that the reasons offenders failed to register were that sometimes the release was not triggered by the system while other times the ICE field office did not notify them.