Federal Appeals Court Requires Immigration Authorities to Consider Financial Resources When Setting Bond

LOS ANGELES – In a major legal victory for immigrants’ rights, a federal appeals court today ruled that the government cannot set unreasonable bonds for detained immigrants, including asylum seekers, by failing to consider their financial resources.

The Ninth Circuit Court of Appeals ruling stems from a class-action lawsuit, Hernandez v. Sessions, filed by the American Civil Liberties Union, the American Civil Liberties Union Foundation of Southern California, and pro bono attorneys from Skadden, Arps, Slate, Meagher & Flom LLP.

Before this ruling, the Department of Homeland Security and immigration judges were not required – unlike in non-immigration cases – to consider ability-to-pay when setting bond for individuals facing deportation. Many immigrants remained incarcerated for months or even years simply because they could not afford the bond.

“This ruling marks the first time a federal appeals court has required immigration authorities to consider people’s financial circumstances when setting bond,” said Michael Tan, staff attorney with the ACLU’s Immigrants’ Rights Project. “It is an important reminder that due process applies to all people in America.”

Ninth Circuit Judge Stephen Reinhardt, in issuing the ruling, wrote, “While the temporary detention of non-citizens may sometimes be justified by concerns about public safety or flight 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.”

Several prominent organizations and individuals filed amicus briefs supporting the class-action lawsuit, including the American Bar Association and nine former immigration judges.

Cesar Matias, a native of Honduras, is a named plaintiff in the case. He fled to the United States more than a decade ago to escape the persecution he suffered because he is gay. In Los Angeles, Matias worked as a hair stylist and in a clothing factory, renting a small, one-bedroom apartment. He was arrested in 2012 and locked up in the city jail in Santa Ana while his application for asylum under the United Nations Convention against Torture was being decided. Bail was set at $3,000.

But Matias had no means to pay that bond and he remained in jail for four years. His application for asylum is still undecided. He was finally released because of publicity generated by the lawsuit, but dozens if not hundreds of immigrants in Southern California remain detained, without hope of release, solely because they are too poor to post 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.

The ruling is at: https://www.aclu.org/legal-document/hernandez-v-sessions-opinion

More information is at: https://www.aclu.org/cases/hernandez-v-sessions