By Andrea Saenz
2015 has been a particularly active year for news about criminal justice reform, including reforming bail. In July, New York City announced a bail reform plan intended to free more people who would sit in jail on bail they can’t afford and put them on supervised release programs. Legislators, advocates, and even judges around the country have supported reforms, acknowledging that thousands of people are locked up in pre-trial detention daily merely because they cannot afford the bail set by a judge, and that this system disproportionately affects poor people of color (see here or here). As the New York Times Magazine documented earlier this month, pre-trial detention exerts tremendous pressure on defendants to plead guilty so they can be released – in New York City misdemeanor cases where the defendant was released without bail, half the defendants eventually won their cases, but in similar cases where defendants were jailed until their cases were resolved, 92% were convicted, most by guilty plea.
The broken bail system has strong parallels with the use of bond in immigration detention, which is also in dire need of reform (bond and bail mean the same thing in these contexts). The Immigration and Nationality Act (INA) and accompanying federal regulations allow ICE to set a bond for some detained noncitizens, and for immigration judges to revise, or “redetermine” the amount of that bond. The INA specifies that noncitizens can be released on a bond of not less than $1,500, or released on conditional parole – meaning released on their own recognizance. See INA § 236(a)(2). Board of Immigration Appeals (BIA) case law outlines to some extent how a detainee may establish that he or she is not a danger to the community or a risk of flight, and thus that he or she deserves release on bond or recognizance. See Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006).
Serious problems abound with the way judges set bonds in practice. First, anecdotally, many judges either do not understand that they can release noncitizens on recognizance without setting a bond, or understand this, but rarely use this option. In fact, the “Immigration Judge Benchbook,” an online resource on the Department of Justice website intended as a reference guide for immigration judges, states confidently but without any citation that immigration judges may not release noncitizens on their own recognizance.
Second, while the statute specifies a minimum bond amount the judge must set, if he or she chooses to set a bond, there is almost no check on the maximum amount of bond an immigration judge can set for a detainee, who is often extremely low-income and unable to afford counsel, let alone a high bond. The BIA has issued no binding case law giving judges guidance about appropriate bond amounts. While the BIA sometimes reverses the immigration judge’s decision to set bond or not, the BIA virtually never reverses a judge on the amount of bond, even in an unpublished decision – the rare exceptions being when the bond is truly absurd, like $100,000.
Even then victories for migrants are sometimes limited. When the BIA reversed an immigration judge’s $100,000 bond, for example, it issued a less absurd—but still excessive—$25,000 bond in its place. Matter of Javier Santiago Garaycochea, A079-616-114, 2006 WL 901383 (BIA Feb. 22, 2006) (unpublished). It is completely normal for immigration judges to set bonds of $5,000, $10,000, or $15,000 on noncitizens who have minimal or no criminal records. On more occasions than I can recall I have met noncitizens with exorbitant immigration bonds who were granted release on recognizance or a few hundred dollars of bail on the exact criminal charges that have now landed them in removal proceedings.
There is virtually no data publicly available about judge-set bond amounts and whether they have any uniformity from city to city, court to court, or even from one judge to another down the hall from each other. Given vast discrepancies in asylum grant rates, a topic about which there is significant case law to guide judges, there isn’t much ground to think bond amounts are uniform when there is so little guidance from the agency.
As a result of this state of affairs, immigration judges across the country frequently rule that a noncitizen is not a danger to society and may be released on bond – but then set a bond far too high for the respondent to pay. BIA precedent has never addressed whether a detainee’s ability to pay is a relevant factor – although this has not stopped the Immigration Judge Benchbook from stating, again without any citation, that “ability to pay is not dispositive.” Any lawyer who represents detained clients has experienced clients who have sat in detention for weeks and months with a bond set who simply cannot afford it. I have, and it is heartbreaking to know that your client is literally sitting in civil detention only because his or her family, who is already suffering without him or her, does not have $2000 or $4000 for bond. For many clients, the prospect of months of future detention is enough to make them accept a removal order rather than fight their cases – just like in the criminal system.
A rare acknowledgement that ability to pay keeps non-dangerous people behind bars came this June in a statement from DHS Secretary Jeh Johnson, announcing partial reforms to the ongoing mass detention of female Central American asylum seekers with their young children. Johnson promised that ICE would apply new criteria “for establishing a family’s bond amount at a level that is reasonable and realistic, taking into account ability to pay, while also encompassing risk of flight and public safety.” Whether ICE has actually done this effectively is up for debate, but I was struck by this statement because an ability-to-pay analysis virtually never figures in ICE’s bond decisions for migrants held without children throughout the country, nor in immigration judges’ bond decisions.
Litigators around the country are doing ground-breaking work challenging the overbroad application of the mandatory detention statute, cases of severely prolonged immigration detention, and bond eligibility for noncitizens seeking protection in “withholding-only” proceedings. In almost every class action or individual habeas petition of this kind, a victory does not mean that the client is released, but means that he or she has won a bond hearing. The gains made in detention litigation don’t translate into release for these clients unless immigration judges actually set bonds that their families can actually pay. I hope this wave of successful litigation means that the time for immigration bond reform has come—that it is time for legislators and agency officials to set policies on reasonable bond amounts, and for lawyers and advocates to push for bond amounts that have some basis in reality, and allow noncitizens who pose no danger to return to their lives as parents, spouses, and workers while pursuing their cases.