The last edition of Boom! Lawyered was a doozy, so we on #TeamLegal thought we’d continue your education this week with something a bit simpler.
Infuriating, but simpler.
We’re going to talk about the bond system, particularly as it applies to migrants who are detained.
The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) branch is the government organization that detains and takes into custody persons who are non-citizens and who are believed to be in the United States without documentation.
Once a person is detained, their family, friends, or advocates will usually want to get them released so they don’t have to languish in a detention center while their case winds its way through immigration court, which can take months, or even years.
Sometimes, ICE will authorize someone’s release based on their personal recognizance—in other words, on a promise by that person they won’t leave town, in which case they will be released from the detention center without having to pay any money.
More likely, however, ICE or an immigration judge will set a bond amount that must be paid in order to secure the detainee’s release.
You’re probably familiar with how bonds work. If you’ve ever watched Law and Order or Dog the Bounty Hunter (which, why are you watching Dog the Bounty Hunter?!), you know that criminal bonds are placed on people caught committing crimes and are used to guarantee an accused’s appearance at court hearings. You’ve likely heard a judge in one of these courtroom dramas ponder about whether or not a particular defendant poses a flight risk.
Immigration bonds are similar to criminal bonds in that you’re paying money to secure the release of someone from a jail or detention center, but they are different in key respects. First of all, a person detained by ICE for unlawful entry into the United States isn’t being charged with a crime. (Breaking U.S. immigration laws isn’t a criminal violation unless you’ve already been deported and are trying to re-enter the country illegally.) The immigration bond simply ensures that the person appears for their deportation proceedings until they are granted residency, are deported, or leave the country on their own and provide proof that they have done so.
Whoever issues the bond (ICE or an immigration judge) will consider various factors in setting the bond amount, including whether the person has family ties to the United States, their employment situation, whether they have criminal convictions, whether they have been ordered to be deported in the past, whether they pose a danger to the community or national security, and whether they pose a flight risk. The higher the flight risk or perceived danger to the community, for example, the higher the bond.
There are two types of immigration bonds: delivery bonds and voluntary departure bonds. Paying the delivery bond permits the person to leave the detention center, spend time with their loved ones, and potentially consult a lawyer pending the hearing about their immigration status.
A paid voluntary departure bond permits the person to leave the country within a specified period of time in order to avoid an order of removal, which would bar legal re-entry for five, ten, or 20 years—or in some cases, permanently.
The statutory minimum immigration bond amount is $1,500, but, in reality, the bonds tend to be much higher than that. Unlike in criminal cases, immigration judges are not required to consider whether the detainee or their family has the financial ability to pay the bond and can set prohibitively expensive bonds, thus resigning individuals to spending their time waiting for their case to move through the courts in detention.
If the bond is made with ICE directly, it must be paid in cash or cash equivalent, such as by cashier’s check. In some cases, the detainee’s friends, family, or advocates can work with an immigrant bond agent who will charge a percentage of the full bond amount and may charge annual percentage fees until the amount of the bond is returned. If that’s the case, a detainee’s loved ones will sometimes try to put a $10,000 or $20,000 bond on a credit card, and will have to pay interest on that amount for the duration of the detainee’s immigration proceedings in addition to the bond agent’s initial fee.
The amount paid for the immigration bond will be returned to the person who paid it once the immigration proceedings have concluded, which can take several years.
So there you have it! Immigrant bonds in a nutshell. Just in case we need to make things more clear, though, let’s work through a hypothetical.
Let’s say that Maria is a citizen of Mexico, has been living in Los Angeles for the past five years, and is undocumented. One day, she is detained by ICE and faces deportation. If Maria does not want to stay in the detention center, she has three options.
First, she can persuade ICE to release her on her own personal recognizance. She will be able to leave the detention center without having to pay any money. She’ll be expected to report to immigration authorities when asked to do so, which she’ll do because she’s not a flight risk and she wants to resolve her immigration status issue quickly.
Second, Maria can fight her deportation by, for example, applying for asylum. She can make her case that she will suffer persecution in her country of origin if she is not permitted to remain in the United States.
Or she can seek a waiver. Immigration judges, in their discretion, can permit an undocumented person to remain in the country in cases of extreme hardship, which is more than the economic or emotional instability that will result from being separated from one’s loved ones. It means “a degree of hardship beyond that typically associated with deportation,” such as being the sole breadwinner for one’s family or having an extremely ill relative. It’s not an easy standard to surpass.
If Maria doesn’t want to remain detained while she makes her case for asylum or waiver, she can be released on a delivery bond. (As Rewire‘s Tina Vasquez notes, even if the process goes smoothly, asylum seekers spend an average of about 111 days in a detention center.) The delivery bond allows Maria to spend time with her loved ones and possibly to consult with an immigration lawyer before her court hearing.
Third, Maria can decide to voluntarily leave the country. Perhaps Maria doesn’t think she has a chance at winning her immigration case because she doesn’t think there’s anything about her situation that will compel a judge to allow her to stay in the country. And so rather than risk an order of removal—in other words, a court order from an immigration judge ordering her to leave the country, and the attendant penalties—she decides to leave the country on her own. (Avoiding an order of removal means that she will not be automatically barred from legally returning to the United States at a later date.)
If she chooses to leave voluntarily, Maria will have to depart the United States at her own expense within a certain period of time. If she doesn’t want to remain detained while she arranges to return to Mexico, she can obtain what is called a “voluntary departure bond.” After payment of a sum of money to ICE, she will be released.
Whether Maria obtains a delivery bond or a voluntary departure bond, whoever pays the bond on her behalf can recoup the amount as long as Maria attends all of her court hearings and meetings with authorities, or if she leaves the country when she says she will. If she fails, she will be ordered deported, and the bond money will be forfeited and kept by the government.
If Maria cannot afford the bond amount—which many immigrants cannot—she will remain in detention for as long as it takes the judge to rule on her case or until the moment she leaves the country.
According to a recent article published in Vice, there are 30,000 immigrants in detention centers, most of whom were offered bonds that were too expensive or were denied them altogether, thus forcing them to remain in jail while they wait for the immigration authorities to process their case.
Conditions in detention centers are often deplorable, with inadequate access to quality food and medical care. Last year, migrants at a detention center in Taylor, Texas, went on a hunger strike that lasted more than ten days to protest the living conditions there. In fact, the United States Commission on Civil Rights recommended the immediate release of all families from detention in a scathing 103-page report released last September.
Now that you have a basic understanding of how immigration bonds work, read Tina Vasquez’s latest on the troubling case of a transgender woman who had her rights trampled on when she sought asylum in the United States.
And then get good and angry at the seemingly lawless situation in which many undocumented people in this country find themselves.