ACLU Challenges Immigration Bond Policies

LOS ANGELES (CN) - Immigration officials' insistence of cash bail for noncitizens - including permanent residents and refuge-seekers - keeps people locked up for years simply because they are poor, a constitutional class action claims in Federal Court.

Lead plaintiff Xochitl Hernandez came to the United States as an adolescent 25 years ago. She has raised five U.S. citizen children and cares for four grandchildren. She is in jail under $60,000 bond because of a decade-old shoplifting conviction, and faces "months or years in detention until her immigration case is resolved."

The other named plaintiff, Cesar Matias, of Honduras, has been in jail for more than four years, seeking political asylum, unable to pay his $3,000 cash bond.

"The detention of such individuals is not justified by any valid interest, but rather is based on nothing more than the fact that they are poor or otherwise lack the financial ability to pay their bonds," their ACLU attorneys say in the April 6 lawsuit.

"Poverty or lack of financial resources should not deprive a person of his or her freedom while in civil immigration proceedings," their attorney Michael Kaufman said.

The lawsuit against the Department of Justice, the Department of Homeland Security and Immigration and Customs Enforcement targets detention policies only in the Central District of California, where at least 100 immigrants and probably many more are held on bond on any given day.

But Michael Tan, with the ACLU's immigration rights project in New York, said the problem is nationwide. "We haven't ruled out bringing this [type of suit] elsewhere," he said.

Matias, who worked in Los Angeles as a hairdresser, says he will be targeted for persecution in Honduras because he is gay. His $3,000 bond "as well be a million," Tan said.

Immigration bonds vary widely, from zero to $100,000 or more. Regional and district directors for ICE have authority to set, increase or reduce bonds, and detention officers in immigration prisons have been known to raise bonds on the spot merely because a detainee comes up with the money, immigration attorneys told Courthouse News.

Tan said one problem is there are no standards for how to set immigration bonds. Yet the fact that immigration judges and officials do set bonds shows that the plaintiffs and other detainees "have actually been found not to pose a danger to the country and found not to pose a significant flight risk," Tan said.

The plaintiffs claim the bond policy, or lack of policy, violates the Immigration and Nationality Act, the rights to due process and equal protection, and the Eighth Amendment's protection from excessive bail.

The ACLU says the government's policies and practices do not require judges or officials to consider a detainee's ability to pay when setting bond.

"Indeed, in a series of unpublished decisions, the BIA [Board of Immigration Appeals] has held that a person's financial circumstances are irrelevant to a bond determination," the complaint states.

The plaintiffs also challenge the demand for bond payment in full, in cash, rather than allowing them to post a deposit or property as in criminal cases, and that immigration policies do not require judges to consider alternatives such as electronic monitoring.

In addition to the federal officials, defendants include officials in Orange County and the City of Santa Ana, where many detainees in the Central District are jailed.

The ACLU says the Department of Justice has argued in criminal cases that keeping defendants in jail "solely because of their inability to pay for their release" violates the equal protection clause and that bail systems must "take individual circumstances into account."

Tan said the federal government has been "very aggressive" in arguing that locking people up in criminal cases because they're poor is unconstitutional.

"So it's not without some irony that the Department of Justice's own immigration judges are doing the same thing," he said.

The Department of Justice had no comment.

The Orange County Sheriff's Office did not respond to requests for comment Thursday.

Michael Kaufman, with the ACLU of Southern California, is assisted by attorneys with the San Francisco office of Skadden Arps Slate Meagher & Flom.

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