Immigration Judges Must Now Consider Financial Resources When Setting Bail

The Ninth Circuit Court of Appeals. Photo: Shutterstock

On October 2, the Ninth Circuit Court of Appeals ruled that the government is not allowed to set unreasonable bonds for detained immigrants—including asylum seekers—for detained immigrants, by not considering their financial resources.

The decision upheld a federal judge’s order—which applied only to immigration courts in California’s Central District, encompassing nearly half the state’s population. But a lawyer for immigrants in the case said the ruling set standards for the entire nine-state circuit.

Lawyers for the federal governments, under President Barack Obama and the Trump administration, argued that bail-setting in immigration cases was not covered by the constitutional standards for criminal cases. They also said that taking detainees’ finances into account would be time-consuming and expensive.

The ruling comes as a result of a class-action lawsuit filed by the American Civil Liberties Union and several other groups, including pro bono attorneys from Skadden, Arps, Slate, Meagher & Flom LLP.
The suit, Hernandez v. Sessions, comes as a result of what happened to Cesar Matias, a Honduran native who fled to the U.S. more than 10 years ago to escape persecution based on his sexual orientation. He was arrested in 2012 and incarcerated in the Santa Ana city jail while his application for asylum under the United Nations Convention against Torture was being decided.

His bail was set at $3,000, substantially more than he could afford on the money he earned as a hair stylist and through his work in a clothing factory. He remained in jail for four years because he couldn’t pay his bail. Although he was finally released because of the publicity generated by the lawsuit, the suit alleges that dozens, if not hundreds, of immigrants are detained, without hope of release, just because they can’t afford to post bail.

In issuing the ruling, Ninth Circuit Judge Stephen Reinhardt wrote, “While the temporary detention of non-citizens may sometimes be justified by concerns about public safety or fight risk, the government’s discretion to incarcerate non-citizens is always constrained by the requirements of due process: no person may be imprisoned merely on account of his poverty.”

The immigrants in the Ninth Circuit case were not found to be dangerous or a flight risk. Yet some stayed in detention for years because they couldn’t afford bond.

“As the Ninth Circuit found, the government should not deprive people of their freedom based on the inability to pay while in civil immigration proceedings,” said Michael Kaufman, Sullivan and Cromwell Access to Justice Senior Staff Attorney at the ACLU of Southern California.

According to the Los Angeles Times, the decision requires the government to hold new bod hearings within 45 days for immigrants who are detained. The government also needs to consult with the immigrants’ attorneys about establishing new guidelines for release.