By Farhad Sethna, Attorney © 2016
The American Civil Liberties Union, in a extremely interesting case which must certainly be closely watched, filed a lawsuit in the Central District of California. The lawsuit captioned “Hernandez v. Lynch” was filed by the ACLU on behalf of ICE detainees who were eligible for bond, but because the immigration judges had set bond at such a high level, could not afford to pay the bonds. For those readers wanting to review the judge’s order, the full case name is “Xochitl Hernandez et al. v. Loretta Lynch et al.” (EDCV 16-00620-JGB). The decision is Document no. 84 on the court’s docket.
As background: With some immigration judges setting bonds as high as $18,000, $20,000, or even $25,000, all of which are100% bonds (not typically 10%, as in criminal cases), the ability of a poor immigrant trying to pay such bonds with their unimaginably low resources is nothing short of impossible. This ensures that immigrants stay locked up in dreadful conditions, costing the taxpayers money day after day, when they could be released, and pursuing their bonafide cases for relief in the immigration courts. Of course, being detained also cuts down their ability to locate and cooperate with defense counsel, since most of the time, they are detained in remote locations.
The ACLU argued that setting such high bonds was unconstitutional, and the immigration court should follow the same guidelines that criminal court judges followed in setting bonds, including: whether the amount of bond would be sufficient to induce the alien to attend future court appearances, whether the bond would be sufficient to deter the alien from committing further crimes or illegal activities, and whether the bond would be within the ability of the alien and his or her family to make payment.
In a preliminary injunction issued early in November, the District Court judge agreed with the ACLU’s position. It instructed the US government to reform its bond policy in order to require immigration judges to consider the following issues when setting a bond: (1) the ability of the alien to pay the bond; (2) limiting the bond amount to an amount that would ensure that the alien would return to court; and (3) considering alternatives to requiring a bond such supervised release or intensive supervision (under which an alien may be placed in an ankle bracelet monitor).
The lawsuit also permits immigrants in that particular federal district to become members of a class action lawsuit against the government if they have been held in detention, been ordered released on bond, but the bond amount has been too high and they have been unable to make that payment.
This case will most certainly bear watching, especially as to what the new administration is going to do about the unfair practice of setting unattainably high bond amounts.
Stay tuned for more developments on this important matter. It affects immigrants nationwide and bears further watching!
About the author: Attorney Farhad Sethna has practiced law for over 25 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.