U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Immigration Detention Bonds Must Be Reasonable

In a class action filed against Jeff Sessions, ICE, and other government officials, the Ninth Circuit Court of Appeals has ruled in favor of the class of immigrant detainees that were denied a fair shake at bond.

The class of immigrant detainees successfully obtained a preliminary injunction requiring immigration court judges to consider a detainees financial ability to pay bond before setting the amount. Additionally, if the detainee is found to be unable to pay, alternatives should be assessed, such as ankle monitoring. The government not only appealed the granting of the injunction, but also appealed their unsuccessful motion to dismiss.

Background of the Case

The cases of the two lead plaintiffs in Hernandez v. Sessions are rather surprising. Xochitl Hernandez is a grandmother that had been in the country since immigrating at the age of 13 in the late 1980s. She has five children and four grandchildren that are all U.S. citizens. She was picked up by a joint LAPD and ICE raid. Though she was never charged with a crime, she was transferred to ICE for removal proceedings. Once processed, she had her bond set at over $60K, despite her family renting a home and not owning significant assets.

The other plaintiff, Cesar Matias, was a man who came to the U.S. seeking asylum, and then spent over four years imprisoned due to the removal action and being unable to pay the $3,000 bond.

No alternative was ever provided to either plaintiff. It was not until Hernandez retained counsel that she was able to get her bond reduced to $5K plus ankle monitoring. Matias was only released after a community organization raised the funds to post bond on his behalf.

Governmental Chutzpah

Given the facts of these two cases, and the fact that there are countless more cases just like these, it really begs the question of what the government lawyers were thinking by filing their appeal. 

As the Ninth Circuit explained, not a single one of the government's arguments had merit, and the class plaintiffs were able to meet the exceedingly high burden to obtain a preliminary injunction to assist all class members. That means that immigration judges may be required to go back and conduct bond hearings again in cases where the detainees' ability to pay was not assessed. 

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