America’s bail system is broken. For years, activists have argued that people shouldn’t have to spend years in jail waiting for their day in court, simply because they can’t afford to post bail. As of last month, the Department of Justice acknowledged the need for bail reform, but that won’t help another group of people in the United States, many of whom spend years behind bars waiting for their court date, sometimes when they haven’t even been charged with a crime.
Immigrants, over 30,000 of whom are in custody right now, are regularly denied bail bonds or offered bond that’s too expensive, forcing them to stay in jail while they wait for authorities to process their case. There’s no cap on how long someone can remain in detention before trial (though a recent ruling entitles immigrants in some states to a new bond hearing every six months) and waiting for a court date can take years. And while there have been recent reforms to the bail system in criminal courts, immigration proceedings happen in civil courts, where defendants don’t have the right to a lawyer and where judges don’t have to consider an immigrant’s ability to pay when setting bail, per guidelines offered in the Department of Justice’s bench book for immigration judges.
“There’s really no requirement right now [in immigration court] where judges look at the financial circumstances [before setting bail],” said Michael Tan, staff attorney at the ACLU’s Immigrants’ Rights Project. Earlier this month, the ACLU filed a lawsuit against the federal government for the unfair bond system in America’s immigration courts, seeking the same type of bail bond reform that has begun to be slowly implemented in the criminal system.
Whether or not a detained immigrant is even offered bond is up to the discretion of a judge. “Someone who has been living here with family members, has status, and has lived here for many years is going to have a greater possibility of getting a bond than someone who just came here seeking asylum and doesn’t know anybody,” said Matt Adams, legal director for Northwest Immigrant Rights Project, which provides legal services for detained immigrants. But new arrivals—including asylum seekers—are less likely to be offered a bond, because judges usually deem them “a flight risk,” according to Adams.
Immigration and Customs Enforcement (ICE) may be motivated to keep immigrants locked up due to the “detention-bed mandate,” a congressional mandate to keep 34,000 immigrants detained at any given time. Of those, 62 percent are housed in private, for-profit facilities. (Last month, 60 members of Congress wrote a letter to the Department of Homeland Security (DHS) calling for an end to the quota.) Adams claims that ICE, which determines the initial bond amount, sets bail extremely high when it’s below its monthly prison quotas and extremely low when local facilities are at capacity. When asked for comment, ICE did not directly address this accusation.
A 2015 study by USC law professor Emily Ryo found that in the Central District of California, one of the most active areas of immigration enforcement, bond amounts ranged from anywhere between $10,667 to $80,500. The major determining factor was whether or not the detainee had a lawyer—a right not guaranteed to detained immigrants in the United States. Ryo also found that judges were basing their decisions mostly off of an immigrant’s criminal record—including past crimes of “moral turpitude,” like jumping a turnstile or shoplifting, which are deportable but don’t present a danger to society.
In 2014, new enforcement priorities from the DHS focused on individuals who have committed crimes in the past—even if it was decades ago, and even if they’ve already served a prison sentence—giving ICE the ability to detain individuals even when they haven’t committed a new crime.
That’s how you end up with cases like Julio*, who had been a lawful permanent resident for 20 years when he was placed in deportation proceedings based on an old misdemeanor charge, for which he’d served 30 days in jail over ten years ago. Julio spent three years in detention before he was finally offered a $20,000 bond. His family couldn’t afford it, so he remained in jail for another year and a half while his legal team fought to reduce the bond to $10,000 and his family scraped together the money to pay it. Julio’s attorney says during the four and a half years Julio was detained, he missed most of his children’s childhood and his marriage deteriorated. By the time he eventually won his case, he says, his life had already been destroyed.
Defendants in criminal courts often turn to bail bondsmen, who offer to post bail for just 10 or 15 percent of the total cost. But bail bondsmen rarely make themselves available to immigrants because unlike criminal court, where a bondsman guarantees he’ll pay the full bond if you don’t show back up to court, immigration bonds are due in full at release. That means immigrants often have to put the entire amount of money together themselves, which can be tens of thousands of dollars.
“There are some people who put the entire bail amount—often like $20,000 to $30,000—on their credit card, trying to get themselves or their spouse out of jail, and it’s not like they’ll get their money back anytime soon,” Adams told VICE.
Immigration proceedings can take years to play out, and bond money isn’t returned until the very end of the case. For someone who needs to be bailed immediately in order to keep a job and a family fed, a $20,000 credit card charge might now take years to pay off, with ballooning interest.
Organizations like the Queer Detainee Empowerment Project have started bail funds to help especially vulnerable populations—in this case LGBT immigrants—leave detention as soon as possible. The bail funds get their money back at the end of proceedings, which they can invest in another bond.
“Every person we work with has already passed their credible fear interview, so they’re already eligible for asylum,” said Jamila Hammami, executive director of QDEP. Even still, Hammami said clients often remain in jail because the judge-ordered bond is way too high. “I’ve called ICE so many times to ask why someone has a $60,000 bond, and they’ll say it’s up to the judge. And the judges rarely end up reducing it.”
In an emailed statement to VICE, ICE said the amount it sets for bonds were “commensurate with an alien’s flight risk. Each case is reviewed individually and takes a variety of factors into account, such as immigration history, criminal history, community ties, etc.”
But others, like Tan of the ACLU, see the recent lawsuit as the beginning of a larger national push against immigration bonds, which not only damage immigrant communities, but come at a huge cost to American taxpayers.