...Bottom Line - in border jumping cases, the prosecution and immigration judge automatically agree to dismiss the “criminal” charge if the defendant agrees to pay the civil penalty....
see voluntary return, expedited removal, and deportation.
if an immigration officer or border patrol agent wants an illegal criminally prosecuted for some reason, they can “walk” the case to the prosecutions unit which presents the cases to the US Attorney. I recall some brilliant defense attorney wanted all the 1325 cases to fight the criminal charges and had them talked into pleading not guilty. They were sitting in court when the first case went to the judge who sentenced him to time served (already in custody) the rest jumped at the chance to get returned immediately instead of sitting in jail for who knows how long waiting for trial,and all pled guilty. the defense got his bright idea shoved where the sun don’t shine.
The border jumping “criminal charge” is a legal formality.
Every adult apprehended at the border is detained for at least a couple days until Border Patrol can get a reasonably clear ID and check USA and international criminal data bases.
80%-90% of those adults will be released on their own recognizance and given a court date (Notice To Appear), which is usually 3-6 months in the future.
About half of those people will never appear, and no one will ever look for them unless they commit a serious crime.
The other half will appear, they will promise to leave the USA and pay a fine, the criminal border jumping charge is dropped, and the court releases them back onto the street.
Most of the people in that group will NEVER leave the USA, almost none of them will pay the fine, and no one will ever look for them unless they commit a serious crime.
There is currently a 950,000 case back log.