ABA endorses requirement to consider poverty, flight risk when immigration courts set bond
An ABA amicus brief filed March 8 argues that immigration courts should be required to consider ability to pay and flight risk before deciding on bond.
The brief (PDF) was filed to the 9th U.S. Circuit Court of Appeals in Hernandez v. Sessions, a class action that argues that the federal government violates the Fifth and Eighth amendments as well as the Immigration and Nationality Act when immigration judges set bond without consideration of the noncitizen’s ability to pay, flight risk or dangerousness.
“When bonds are imposed without consideration of less restrictive conditions or the noncitizen’s financial resources, they may inadvertently cause a noncitizen to be detained solely because of his or her inability to pay,” the brief says. ”That outcome violates bedrock constitutional protections.”
The underlying lawsuit was filed by the American Civil Liberties Union of Southern California. According to the complaint (PDF), bond for lead plaintiff Xochitl (“so-chee”) Hernandez was set at $60,000 in March 2016, even though her sole crime during more than 25 years in the United States was shoplifting. Hernandez came to the United States without authorization as a teenager and is eligible for processes that could legalize her status. But she cannot afford the bond and remains jailed at an Immigration and Customs Enforcement detention facility.
Another lead plaintiff, Cesar Matias, is a Honduran national seeking asylum in the United States because he was persecuted at home for his sexual orientation. He has been detained for more than four years in a city jail in Orange County, the complaint says, because he cannot afford the $3,000 bond set by an immigration court.
The ACLU noted that immigration judges and ICE agents—both of whom may set bond—require the full amount of cash bond before release and often set five- or six-figure bond amounts without considering the noncitizen’s ability to pay. This is not authorized by the INA, the complaint says, and violates the Eighth Amendment’s excessive bail clause and the rights to due process and equal protection under the Fifth Amendment. A Central California district court issued a preliminary injunction that required consideration of ability to pay and less restrictive conditions of release before imposing bond.
The ABA asked the San Francisco-based 9th Circuit to affirm that ruling. The U.S. Supreme Court has held that pretrial detention violates noncitizens of their fundamental right to liberty, the brief says, and this is permissible only when there’s a legitimate law enforcement purpose for the detention. When decision-makers don’t take ability to pay into account, the brief says, they violate constitutional principles. They also hurt detained people’s abilities to defend their cases, deprive citizen children of their parents, and overburden the immigration detention and court systems, at a substantial cost to the public.
The ABA has expressly opposed routine detention of noncitizens in the 2006 Report 107E, the brief notes, and has recommended bond or bail only as a last resort in its Criminal Justice Standards and Civil Immigration Detention Standards.
