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Bond hearings: What immigration courts should consider

The primary factors immigration judges should consider in bond proceedings are similar to those in the criminal justice system. The law instructs detained immigrants to show the court he or she does not pose a public safety risk and is not a flight risk warranting confinement.

Bond hearings: What immigration courts should consider is part of the Southern Poverty Law Center’s No End in Sight report. Read the full report.

Immigration courts, like criminal courts, look to family ties and community involvement through work or civic or religious activities to gauge flight risk. If a person does not pose a safety risk but poses a flight risk, courts should impose conditions to ensure the person appears in court for removal proceedings.

Frequently, money bail is imposed to ensure an appearance, but courts may impose other conditions, such as requiring the person to surrender travel documents to Immigration and Customs Enforcement (ICE).

Santiago’s experience, which is documented in this report, highlights a troubling disparity among courts in bond grant rates and bond amounts. In the first eight months of fiscal year 2018, 30.5 percent of detained immigrants nationwide got an immigration judge to grant them release on bond, at a median bond amount of $7,500. In Atlanta, while bond grant rates were 49 percent, the median bond amount was far higher at $12,000, a sum many cannot afford to pay.

‘Punishing a person for his poverty’

When immigration courts grant a bond, they often fail to consider the person’s ability to pay, setting an amount a noncitizen cannot afford despite the Eighth Amendment forbidding excessive bail.1

In FY 2015, the average initial bond at Stewart Detention Center was $13,714. At Irwin County Detention Center, another facility in Georgia, the amount was $11,637. These amounts are far higher than the national average initial bond amount of $8,200. They also fail to show that an immigration judge can grant bonds as low as $1,500.

These bond amounts, unaffordable for many, help explain why one in five people granted bond in immigration proceedings remain detained at the close of the case.

Compounding the hardship for people is the fact that immigration officials require posting of the full cash amount of the bond rather than a percentage accompanied by collateral, which would occur in a criminal case. These practices undermine the very purpose of bail, which is to ensure a court appearance when a person isn’t a risk warranting confinement.

A line of cases involving detention in criminal matters has well established the principle that a poor person cannot be detained “for inability to post money bail” if there are alternatives to detention that can reasonably assure a court appearance.2

In 2017, the 9th U.S. Circuit Court of Appeals considered whether the due process clause of the Constitution requires immigration officials to consider immigrants’ ability to pay bond and alternatives to detention in deciding what conditions are reasonably necessary to ensure they appear in court.3

The case, Hernandez v. Sessions, involved a class of noncitizen plaintiffs granted bond but unable to afford the high amounts. The court held that plaintiffs were likely to win on their claim that due process requires consideration of ability to pay. It also stated that by “maintaining a process for establishing the amount of a bond that likewise fails to consider the individual’s financial ability to obtain a bond in the amount assessed or to consider alternative conditions of release, the government risks detention that accomplishes ‘little more than punishing a person for his poverty.’”4

Orders of recognizance and supervision

Another avenue for immigration courts is release on orders of recognizance or supervision, which allows a person to be released without paying bond. They were widely used in FY 2015, with release on orders of recognizance or supervision accounting for 19.8 percent of those released from ICE custody.

That avenue was practically foreclosed to people detained at Stewart – such as the Simeón brothers, whose experience is included in this report – and detainees at the LaSalle ICE Processing Center in Louisiana and the Irwin County Detention Center in Georgia. The respective rates of release on such orders at the facilities were 5.2 percent, 2.4 percent and 2.8 percent respectively.

Mandatory detention

In immigration courts, many migrants are denied the right to a bail hearing before a judge. The Immigration and Nationality Act (INA) subjects certain noncitizens to mandatory detention throughout their removal proceedings, again reflecting punitive measures for migrants who have been criminalized.5 This includes people removable due to a sweeping range of criminal offenses – including nonviolent offenses, such as drug offenses – despite the person having already served his or her sentence.6 ICE confined more than 12,000 such people in 2016.7

Similarly, asylum seekers at ports of entry who pass credible fear screenings – but are still detained by ICE – do not have the right to seek bail before a judge.8 In fiscal year 2015, an estimated 7,500 such asylum seekers were detained by ICE.9

The U.S. Supreme Court recently reviewed the blanket denial of bail hearings to these populations during removal proceedings and held the statute allowed it, regardless of the length of the confinement.10 It declined, however, to hear whether these parts of the INA violated the U.S. Constitution.11

U.S. Const. amend. VIII. Back to report.

2 See Pugh v. Rainwater, 572 F.2d 1053, 1058 (5th Cir. 1978) (en banc); Bearden v. Georgia, 461 U.S. 660, 671 (1983). Back to report.

3 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017). Back to report.

4 Id. at 992 (quoting Bearden, 461 U.S. at 671). Back to report.

5 8 U.S.C. § 1226(c). Back to report.

6 See Jennings v. Rodriguez, 138 S. Ct. 830, 860 (2018) (Breyer, J., dissenting). Back to report.

7 Brief of 43 Social Science Researchers and Professors as Amici Curiae Supporting Respondents at 6, Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Back to report.

8 8 C.F.R. § 1003.19(h)(2)(i)(B) (“an immigration judge may not redetermine the conditions of custody imposed by [ICE] with respect to…[a]rriving aliens in removal proceedings, including aliens paroled after arrival pursuant to section 212(d)(5) of the Act”). Back to report.

9 Brief of 43 Social Science Researchers and Professors as Amici Curiae Supporting Respondents at 8, Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Back to report.

10 Jennings, 138 S. Ct. at 845, 847. Back to report.

11 Id. at 851. Back to report.