The cost of bonds – the payment used to secure the release of an immigrant from federal authorities – is out of reach for many people and straps many who borrow money to pay them with enormous debts.
It’s among the Trump-era policies that could be easily changed by the Biden administration through a simple memo, but in the past six months, bond amounts ordered by the Department of Homeland Security and issued by immigration judges have remained high.
Data collected by two academic and advocacy organizations show few to no differences in bond amounts issued by immigration judges over the first six months of the Biden administration. While bonds began to rise during the Obama administration, they rose considerably under Trump to the current levels.
Judges for the Executive Office of Immigration Review, which oversees US immigration courts, make the ultimate decision on what amount they will accept for the release of detained immigrants, but only after other options are exhausted.
The DHS sets bonds, which are required by the federal immigration law to be $1,500 or more, and US Immigration and Customs Enforcement (Ice) can do the same. If the immigrant can’t pay the full amount of the bond, a hearing happens. At that point, a government attorney can suggest a bond amount higher than originally suggested.
Attorneys working with the National Bail Fund Network said four clients were issued bonds ranging from $10,000 to $25,000 between February to April 2021, and anecdotally, attorneys across the US said they continue to see high bonds.
Data from Syracuse’s Transactional Records Access Clearinghouse (Trac), an independent and non-partisan data research organization, shows a similar trend.
“The data we have on bond amounts from immigration courts system does not show any significant change at all since Biden took office in January,” said Dr Austin Kocher, Trac’s head researcher.
Under Trump, government attorneys asked for bonds well in excess of $1,500, regularly $15,000 to $20,000, and as high as $1.25m, according to the bail fund’s data from January 2018 to May 2021.
“A lot of that [increase] had to do with the fact that Trump hired a huge number of immigration judges and those immigration judges then set very high bond,” said Hannah Cartwright, executive director of Mariposa Legal in Indianapolis.
She and other advocates are hoping the Biden administration will begin to significantly reduce bond amounts for detained immigrants.
Attorneys and advocates said that there are many factors that go into a final bond issued by a judge, and that the number of detainees is down under Biden.
In January, Biden’s DHS said that instead of continuing Trump-era enforcement priorities of detaining immigrants with or without criminal records, Ice would instead focus on holding those with serious criminal offences.
The DHS secretary, Alejandro Mayorkas, recently said that the number of immigrants with offences related to sexual assault, driving under the influence and domestic violence is up. But Title 42 and Migrant Protection Protocols have allowed the expulsion of immigrants under a Centers for Disease Control and Prevention (CDC) order, and until recently, have required most migrants seeking asylum to wait on the Mexican side of the border for makeshift tent courts.
In Minneapolis, attorney John Bruning said one of his clients was released from detention in April on a $100,000 bond after being detained for 46 months based on a 2009 drug possession conviction. He said that bonds under Biden had been a situation of “apples and oranges”: it was hard to compare with the Trump era because of the pandemic, and because of policies that have led to lower detention numbers.
“Between the interim and informal enforcement priorities and Covid-19, we’re seeing far fewer people in detention and far fewer entering detained proceedings than any other time in the past 15-plus years,” he said. Most are ineligible for bond.
In the few cases where someone has been granted bond recently, Bruning said that if he compared the bond amount to a year ago, it would be the same.
Samuel Cole, a Chicago immigration court judge, said the mix of people who are detained had shifted, but the DHS attorneys who come to his court have not.
“The attorneys who practice in front of me are essentially the same attorneys,” he said, speaking on behalf of the National Association of Immigration Judges.
“I found that in the beginning of the Trump administration, they really did take more extreme positions than they had been previously,” he said. After a couple of years, that settled down, he said, but the bond amounts were still higher than 2013 when they first started rising.
The two main parts of deciding a person’s bond amount, once it’s requested, are flight risk, and if they are a danger to the public. Bond amounts can vary by court, Judge Cole said, and there are few standards determining what the bond should be. He said the geographical location of the court, the culture of the area Ice office and trends in the area’s bond amounts can all affect what the final bond will be.
Cartwright of Mariposa Legal, whose cases are often heard in Chicago, said there were fewer people detained nowadays, but the bond amounts being requested had not changed much. “I certainly haven’t seen government attorneys stop arguing for high bonds,” she said.
Chicago is an area with “decent bonds”, where getting someone bonded for under $5,000 is common, she said. But when Cartwright argued for an Indiana resident detained in Arizona, the judge in that court set $18,000, and she was told that was a “good bond”, because the judge was sympathetic.
“I mean, that’s crazy,” said Cartwright. “But you know – part of that problem is that there’s no guidance, other than the $1,500 minimum bond.”
There have been a few jurisdictions where bonds have been slightly lower than a year ago. Freedom for Immigrants, an organization that pays bonds, saw a slight decrease in bonds set for asylum seekers in California.
“I’ve seen a lot of $5,000 to $7,000 bonds set for folks at Southern California detention center,” said Jennaya Dunlap, the coordinator for the Immigrant Detention Bond Fund. She called the amounts “mid-range Obama years”. But in Louisiana, Dunlap is seeing high bonds for asylum seekers under the Biden administration, ranging between $10,000 and $25,000.
When a judge sets a high bond of more than $10,000, immigrants turn to what she called “predatory” third-party bond agents, which charge them a monthly fee to cover the bond amount and several hundred dollars more for an electronic ankle monitor it requires every customer to wear.
That additional fee never goes to the bond, and the practice is being contested in several courts nationwide. Dunlap said her organization had approached at least a dozen detainees to pay their bonds, only to be told they had already gone to bond companies out of desperation.
It’s no secret that immigration attorneys would like to see their clients granted a low bond, or released with no bond at all. Dunlap doesn’t believe the issue of high bonds is on Biden’s radar.
All it would take, she said, would be an executive order encouraging Ice to set bonds at the minimum rate. She also thinks the president should consider encouraging the justice department to consider humanitarian relief, setting lower bonds or releasing people on their own recognizance.
“Bond amounts are widely inconsistent around the country, and there is no clear guidance for when a judge should grant an order of recognizance, a $1,500 minimum bond, a $5,000 bond, a $15,000 bond or, in my case, a $100,000 bond,” Bruning said. This could in turn streamline bond procedures, reduce appeals and result in the release of individuals.
Cartwright agrees the Biden administration should send a directive to the DHS to clarify the administration’s objectives around bonds, but also thinks there needs to be a shift justice department hiring.
“Trump hired so many immigration judges that used to be previous DHS attorneys, that that would require a huge shift in terms of how the judges understand the immigration courts that they work in and what their role in determining bond is,” she said.
Amy Semet, an associate professor at the SUNY University of Buffalo School of Law who studies bonds, made a similar assessment.
“It’s really not going to be until we see what immigration judges Biden appoints that it will be different,” she said, adding that immigration judges bring their own understanding of bonds and their own preferences to the table.
Some advocates want a more systemic change. Elizabeth Nguyen, who coordinates immigration bonds for the National Bail Fund Network, said advocates should be more focused on ending all forms of incarceration, not incremental changes within it.
“Our goal is not to make the system work a little bit differently, by ending bond or capping bond amounts – our goal is to chip away at the system until it does not exist.”
Nguyen echoed Bruning and said that Ice has discretion to release most people, and said the call should be to release “every single person”.’]
