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Monday, July 15, 2024 | Back issues
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Ability to Pay Key to Bail in Immigration Cases, 9th Circuit Rules

Judges must consider a detainee’s ability to pay when setting bail in immigration court, a Ninth Circuit panel ruled Monday. 

LOS ANGELES (CN) – Judges must consider a detainee’s ability to pay when setting bail in immigration court, a Ninth Circuit panel ruled Monday.

Writing for the majority, Circuit Judge Stephen Reinhardt said it doesn’t make sense for the government not to consider financial circumstances when setting bond since the whole point of bail is to incentivize an arrestee to show up to their next court date.

“Since the government’s purpose in conditioning release on the posting of a bond in a certain amount is to ‘provide enough incentive’ for released detainees to appear in the future, we cannot understand why it would ever refuse to consider financial circumstances: the amount of bond that is reasonably likely to secure the appearance of an indigent person obviously differs from the amount that is reasonably likely to secure a wealthy person’s appearance,” Reinhardt wrote.

“Nor can we understand why the government would refuse to consider alternatives to monetary bonds that would also serve the same interest the bond requirement purportedly advances. This is especially true in light of the empirically demonstrated effectiveness of such conditions at meeting the government’s interest in ensuring future appearances.

“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,’” Reinhardt added, quoting Bearden v. Georgia, a 1983 Supreme Court case ruling it a violation of due process to revoke a person’s probation due to failure to pay a fine without first considering that person’s financial circumstances.

Michael Tan, an attorney with the ACLU’s immigration rights project in New York, called the ruling historic.

“It’s the first ruling that requires judges to consider people’s financial circumstances when setting bond,” he said. “Much like the criminal justice system, authorities over-rely on cash bail as a means of ensuring people show up for court when we know from the wealth of research that’s been done, when you rely on cash bail you end up discriminating against people based on wealth.”

Tan represents a class of immigrants detained pending removal proceedings at four detention facilities in Adelanto, Irvine, Santa Ana and Orange, California. According to the federal complaint, these facilities have the capacity to hold several thousand people at any given time.

Lead plaintiff Xochitl Hernandez came to the United States as an adolescent 25 years ago. In 2016, she was rounded up during an LAPD raid of a friend’s house and was transferred to ICE custody, where her bail was set at $60,000. Unable to come up with even $1,500, she remained in jail for months until a community organization called the National Day Labor Organizing Network raised $5,000 and a different immigration judge accepted that amount.

The other named plaintiff, Cesar Matias, is an asylum seeker who fled Honduras to escape persecution for being gay. He was arrested in 2012 and was held at an ICE detention center for nearly four years because he couldn’t afford his $3,000 bond. He was eventually released after his case garnered so much attention that the community organization Community Initiatives for Visiting Immigrants in Confinement raised enough money for him to bond out.


The lawsuit seeks to represent many like Matias and Hernandez, whom judges have determined are not a flight risk or a danger to the public, but remain locked up because they can’t pay bail.

“The ruling doesn’t go so far as to eliminate cash bail, but it puts in place some basic due process protections where the judge has to consider financial circumstances and ensure the person isn’t being locked up because they lack the means to pay it,” Tan said. “Many go on to win their cases, which makes it all the more irrational to keep people locked up.”

The ruling comes as the movement to do away with cash bail entirely in California is growing in popularity among state lawmakers.

In the federal criminal system, which has been held up by California bail reform advocates as a model for how the state system ought to work, arrestees are allowed to put up 10 percent of their bond, or offer up a house or property as collateral. But in the immigration system, those arrested are required to immediately post a cash bond set by an immigration judge.

“The only mechanism is cash bail,” Tan said. “The federal pretrial system does have a lot more protections for criminal defendants and there’s no reason why there shouldn’t be comparable protections in the immigration system.

“There isn’t anything like pretrial services in the immigration system where someone is working with someone to do a risk assessment and come up with a recommendation to the court. And people suffer for it. We know from years of accumulated experience in the criminal justice system that there are better ways of doing this.”

The Ninth Circuit’s ruling affirms a federal judge’s decision to grant the class a preliminary injunction requiring the government to consider financial circumstances and alternative conditions of release.

“When the government determines what bond to set without considering a detainee’s financial circumstances, or the availability of alternative conditions of release, there is a significant risk that the individual will be needlessly deprived of the fundamental right to liberty,” Reinhardt wrote. “Even though consideration of these matters does not guarantee that a non-citizen will actually be  released on a bond that he is financially able to obtain once all flight risk factors are considered, [immigration judges] and ICE will certainly be less likely to impose an excessive bond if they  are mandated to at least  consider financial circumstances and alternative conditions before setting the amount.”

Circuit Judge Ferdinand Fernandez wrote that he disagreed with the scope of the injunction, even as he agreed that the federal judge wasn’t wrong in issuing it. He said judges must consider financial ability, but he does not think the government should be ordered to meet with the class’ attorneys to develop and agree to guidelines for future immigration hearings, or have to conduct new bond hearings within 45 days.

He wrote, “As I see it, at this point, the government must consider financial ability. If detailed procedures beyond those that already exist (or amendments to current procedures) are needed for that purpose, the government’s determination and adoption of those procedures should basically be through the usual governmental processes rather than in a forced march and a required agreement with class counsel.”

The Justice Department declined to comment on the ruling.

Tan said the class hopes to make the protections permanent.

“The case continues,” he said. “We’re moving ahead with discovery with an eye toward seeking a permanent injunction.”

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Categories / Appeals, Civil Rights, Government

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