Some asylum-seekers and immigrants in deportation proceedings are granted bond to leave detention while they seek relief to stay in the U.S. -- something that allows them to rejoin family and more easily find attorneys. It's a policy that costs taxpayers a lot less, and one immigrant rights advocates say is more humane.
But some of the people granted bond can't leave because it's set too high for them to pay it, civil rights groups affiliated with the American Civil Liberties Union allege in a lawsuit filed Wednesday.
The ACLU Foundation of Southern California, the ACLU Immigrants’ Rights Project and six pro bono attorneys filed a class-action lawsuit against the U.S. government, including Attorney General Loretta Lynch and Homeland Security Secretary Jeh Johnson.
They contend that bond set by judges and Immigration and Customs Enforcement agents should be made with consideration to what individuals can pay, so that people considered unlikely to abscond won't remain in detention while their deportation cases are pending.
One plaintiff, a hairstylist named Cesar Matias, has been in detention for more than four years as he fights his deportation, even though immigration judges authorized him for release on a $3,000 bond on multiple occasions beginning in November 2012, the lawsuit states. Matias is a gay man seeking relief to stay in the U.S. based on a fear of persecution in his native Honduras and his appeal could take years, according to the lawsuit.
Xochitl Hernandez, an undocumented woman from Mexico, remains in detention even though an immigration judge set her bond last month, according to the lawsuit. The suit states she is a mother of five and grandmother of four who has lived in the U.S. for more than 25 years, and has one criminal conviction from a decade ago: a shoplifting charge for which she was sentenced to one day in jail.
The bail set by an immigration judge was $60,000, and she and her family can't pay it, according to the lawsuit.
Immigration judges or enforcement officials are not required to consider an individual's ability to pay bond when setting a figure, and they did not ask Matias or Hernandez about their financial circumstances before determining their bond amounts, the suit says.
Poverty or lack of financial resources should not deprive a person of his or her freedom while in civil immigration proceedings. Michael Kaufman, attorney for the ACLU Foundation of Southern California
The ACLU and pro bono attorneys allege in the suit that continuing to detain individuals who cannot pay is discriminatory and violates individuals' rights to due process.
"Poverty or lack of financial resources should not deprive a person of his or her freedom while in civil immigration proceedings," ACLU Foundation of Southern California attorney Michael Kaufman said in a statement. "Such detention violates the due process and equal protection guarantees of the Fifth Amendment, the Eighth Amendment’s Excessive Bail Clause and immigration laws."
Immigration and Customs Enforcement, which is part of DHS, can set bond amounts for individuals that require them to appear at future removal proceedings. Those decisions are made based on whether individuals are a flight risk and whether they have a criminal or immigration record, ties to the community or are otherwise eligible for bond, according to the agency.
Immigrants can also appeal to the Executive Office for Immigration Review at the Department of Justice to grant them bond or lower their bond amounts. Immigration judges are instructed to consider the same factors: whether the immigrant is likely to appear at future immigration proceedings and whether they pose a danger to national security, property or people, according to a manual from the review office.
The Justice Department did not respond to a request for comment on the lawsuit. The Department of Homeland Security does not comment on pending litigation, a spokeswoman said.