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"Congress has never provided bond hearings for aliens detained at the threshold of entry to the country pending the outcome of proceedings to exclude them," Solicitor General Donald Verrilli wrote in a May court filing. Immigrants "who are 'not clearly and beyond a doubt entitled to be admitted' 'shall be detained'" for deportation proceedings, he added, and immigration judges "'may not' hold bond hearings for them."
Of the 38,441 immigrants who entered the country illegally and were released during deportations between 2010 and 2014, nearly a third disappeared before their next court date, Verrilli says.
"Absconding is already a serious problem in the immigration system," he contends. Within the 9th Circuit on the West Coast, where roughly half the detainees have posted bond since the 2012 injunction, "it is a statistical certainty, moreover, that some of those criminal aliens will abscond and that some will commit further crimes that detention would have prevented."
The ACLU and some legal scholars argue that the Justice Department's figures are inaccurate, and that far fewer immigrants flee than the government's lawyers claim. About 86 percent of immigrants released from detention made their next court appearance in fiscal 2015, and the number of detainees who post bond and then abscond has fallen in the past 10 years, according to a September analysis by the Syracuse University Transactional Records Access Clearinghouse for Immigration.
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