Federal officials set unreasonably high bond amounts for immigrant detainees, unfairly leaving them stuck in custody for long periods of time because they don't have the money, according to a lawsuit filed by the ACLU on Wednesday.
As a matter of policy, immigration judges and the Department of Homeland Security aren’t required to consider financial circumstances when setting bail for detainees and often don’t, the ACLU claims. When a bond is set, immigrants are required to pay it in full before they’re released and can’t post a deposit, property, or other assets as collateral.
“Poverty or lack of financial resources should not deprive a person of his or her freedom while in civil immigration proceedings,” Michael Kaufman, an attorney with the ACLU of Southern California, said in a statement. “Such detention violates the due process and equal protection guarantees of the Fifth Amendment, the Eighth Amendment’s Excessive Bail Clause and the immigration laws.”
The Department of Homeland Security (DHS) and Executive Office for Immigration Review (EOIR), which is responsible for carrying out immigration cases, said they don’t comment on pending litigation.
It isn’t the first time bonds have been an issue for the nation’s immigration courts. Last year, two federal appeals courts ruled in favor of giving immigrants fighting their deportations speedy bond hearings. One of the rulings stemmed from a 2007 lawsuits also filed by the ACLU on behalf of a Mexican immigrant who was detained for more than three years without a bond hearing.
The complaint also stated that immigration officials are not required to consider conditions of supervision, such as electronic monitoring or periodic reporting requirements, to lower the bond amount and mitigate flight risk.
As a result, migrants who can’t afford to pay the bond languish in detention centers.
The class action lawsuit was filed on behalf of Xochitl Hernandez, a Mexican immigrant detained at the Adelanto Detention Facility in California while her case moves forward. Her lawyers said she may qualify for a U-Visa as a victim of domestic violence.
Hernandez, who lived in the U.S. for 25 years and cares for her four grandkids, was convicted more than a decade ago of shoplifting. In March, an immigration judge set bond for Hernandez at $60,000. Because her adult children have no assets and spend most of their money on rent, food, and other basic needs they’ve been unable to pay the bond, according to the complaint.
The other plaintiff, Cesar Matias, is a gay man from Honduras who is seeking protection in the U.S. because of his sexual orientation. Matias, who was convicted of drug possession, has been in custody since 2012 because of he hasn’t been able to pay his $3,000 bond.
The ACLU said the immigration court's reliance on full cash bonds, without considering a person’s financial ability to pay, is out of step with federal and state court procedures. The federal Bail Reform Act requires district courts to consider alternatives before ordering a full cash bond that could result in the pretrial detention of a person.
In another federal case against the city of Clanton, Alabama, the Department of Justice said “[i]ncarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.”