After federal immigration agents picked up Cesar Matias in late 2012 and began deportation proceedings against him, the Honduran native asked that he be allowed to remain in the U.S. for his own safety. As a gay man, he argued, he faced a resumption of persecution if he was forced to return to Honduras. An immigration judge found that Matias had presented a sufficient argument to win a stay of deportation while the legal process played out. The judge also determined that Matias did not pose a risk to public safety or to national security, nor was he a flight risk, and said he could be released on a $3,000 cash bond. But Matias has no assets. He's broke. So he has remained in the Santa Ana City Jail for more than three years, and likely will remain incarcerated for at least another year as his case is decided.
According to a lawsuit filed last week on behalf of Matias and others in his situation by the American Civil Liberties Union, the immigration system does not consider a detainee's ability to afford bond when determining how much cash must be posted. But that's unfair and counterproductive. When someone like Matias is seeking protection from persecution, or has made a credible argument that he or she might be eligible to remain in the country, the government should not set the price of release at such an exorbitant level that the person is forced to remain in prolonged imprisonment. The whole point of setting bond is to enable people who pose no danger to be out of detention while they wait for their proceedings — but with an incentive to return.
People facing deportation proceedings can be released on bond by either an Immigration and Customs Enforcement supervisor or by an immigration judge after they determine that the detainee is eligible (the law mandates detention for specific categories of undocumented immigrants), does not pose a threat to others and is not likely to disappear. They reach such decisions based on a range of factors, including whether the person has a fixed U.S. address, family ties in the country, how long the person has lived here, work history, past court appearance history, criminal record, prior immigration violations, previous attempts to flee, and how the person entered the U.S. in the first place. There is nothing in the publicly available guidelines telling immigration judges and officials that they should consider the detainee's ability to post the bond.
Immigration officials declined to talk about how they set bond levels because it is the focus of the pending lawsuit, but did say that "each case is reviewed individually and takes a variety of factors into account, such as immigration history, criminal history, community ties, etc." A spokeswoman for the immigration courts did not respond to requests for their ground rules, but a departmental handbook directs judges to consider "whether the alien's release would pose a danger to property or persons, whether the alien is likely to appear for further immigration proceedings and whether the alien is a threat to national security." No mention of the person's ability to pay.
Significantly, immigration cases are matters of civil law, not criminal law, and ICE officials and immigration judges are not required to order a cash bond; they have the authority to release a detainee on his own recognizance or with other safeguards. Once a decision has been made that someone like Matias, who is seeking humanitarian protection, qualifies for release, it's unjust — and bordering on cruelty — to keep him in jail solely because he lacks the cash to buy his freedom. The government has other ways to supervise his release, including electronic monitoring, if such measures are deemed necessary.
It is unconscionable that Congress has failed for so many years to reform its immigration laws, which are broadly viewed as confusing, out of date and insufficient to deal with the problem. The U.S. has a right to control entry into the country, but it also needs a fair process to allow those who have lived productive lives here for years to step out of the shadows and fully join American society.
Our national commitment, through both federal laws and international accords, to provide a safe haven for the persecuted is important, too. And it is unfair, and inhumane, to incarcerate them, and other petitioners for relief from deportation just because of their poverty.