What Happens When Asylum Seekers Are Too Poor to Make Bail

On April 6, the American Civil Liberties Union (ACLU) filed a class action lawsuit against the federal government for detaining immigrants who remain in jail simply because they are too poor to pay their bond.

One of the plaintiffs in the case, Cesar Matias, is a gay Honduran seeking protection in the United States. Since 2012, he's been detained at the Santa Ana City Jail because he is unable to afford the $3,000 bond a judge set for his release. Xochitl Hernandez, the other plaintiff, is being held at a for-profit detention facility so notoriously dangerous that 29 members of Congress submitted a letter to the Department of Homeland Security requesting that women not be detained there. Hernandez, a mother of five U.S. citizen children (and grandmother of another four citizens), faces the prospect of remaining in detention for years until her case is resolved because her bond was set at $60,000.

Both plaintiffs were found eligible for release, which means that they pose no danger to their communities. Any chance of flight risk would be mitigated by conditions placed on their release. Yet they remain in immigration detention facilities that have dismal human rights records simply because they can't afford to pay up.

"They remain in immigration detention facilities that have dismal human rights records simply because they can't afford to pay up."

Unfortunately, the cases of Matias and Hernandez aren't isolated incidents. The U.S. immigration detention system holds some 34,000 people daily who are awaiting decisions in their immigration cases. Many of them are detained because they are unable to make bond. The ACLU estimates that there are at least 100 immigrants detained in Los Angeles alone just because they cannot afford to pay bond. At the Santa Ana City Jail, where Matias is being held, only three of 651 detained immigrants were bonded out in 2015. I've received reports from attorneys working across the country--including in New Jersey, Texas, and Arizona--about LGBT people detained due to bonds as high as $100,000.

Detention not only subjects immigrants to terrible conditions--conditions that are particularly dangerous for LGBT individuals--it can also carry devastating long-term consequences. The New York Immigrant Representation study found that detained immigrants who are represented by counsel have only an 18 percent chance of a successful case outcome, compared to a 74 percent success rate for immigrants who are represented but have not been detained.

The Department of Justice (DOJ) has criticized cash bonds in the criminal justice system that result in the incarceration of people solely because they can't pay. Congressman Ted Lieu also introduced legislation to end money bail. Yet immigration officials do not consider an immigrant's ability to pay when setting a cash bond either, and in contrast to the criminal justice system in which an individual typically must post 10 percent of the bond in order to be released, immigration detainees must pay the entire bond.

As attorney Michael Tan of the ACLU told me, "Ironically, at a time when the Department of Justice has argued that it's unconstitutional to lock up criminal defendants simply because they're poor, its officials are engaged in the same practice in the immigration system. But it's just as irrational--and unlawful--to lock up immigrants solely because they can't afford to make bail."

According to an Immigration and Customs Enforcement (ICE) spokesperson, bond amounts are determined by an individual's flight risk. ICE reviews each case and takes a variety of factors into account to determine the level of flight risk--including immigration history, criminal history, and community ties.

Hernandez was considered enough of a risk to warrant a $60,000 bond determination, despite living in the U.S. for the past 25 years and having children and grandchildren who are citizens. According to the ACLU's complaint, the additional factor taken into account appears to be her criminal history, which consists of a decade-old shoplifting conviction for which she was sentenced to one day in jail. As for Matias, the complaint doesn't specify a determination of his flight risk; it simply states that the judge believed the $3,000 bond set was "pretty generous." The judge who reviewed that determination two years later agreed the amount was "reasonable," despite Matias' continued inability to afford it.

While ICE has broad discretion in determining which factors to weigh in setting conditions for release, there is a statutory bond minimum of $1,500. Moreover, officials are not required to consider whether alternative conditions of supervised release--such as periodic reporting requirements or ankle bracelets--can be utilized alone or in combination with lower bond amounts to ensure that individuals appear in court. These alternatives to detention cost an average of $10.55 per day, compared to an average daily cost of $158 to detain a person. In cases where bond is used, the very least ICE and DOJ should do is consider the ability of an individual to pay it.

The government has now spent $153,300 to keep Matias in detention. Until the DOJ and ICE make smart and humane reforms, these costs will continue to mount, and people like Cesar Matias and Xochitl Hernandez will languish in cells, solely because they are too poor to make bail.