Every day hundreds of immigrants — asylum seekers, legal residents and some here illegally — are being incarcerated at taxpayer expense after they've been ordered released because they are too poor to pay the cash bond set by the federal government, according to a class-action lawsuit.
The lawsuit was filed Wednesday in Los Angeles by the American Civil Liberties Union of Southern California and other civil rights groups against the Department of Justice, the Department of Homeland Security, and U.S. Immigration and Customs Enforcement.
"Poverty or lack of financial resources should not deprive a person of his or her freedom while in civil immigration proceedings," said Michael Kaufman, an ACLU staff attorney. "Such detention violates the due process and equal protection guarantees of the Fifth Amendment, the Eighth Amendment's Excessive Bail Clause and immigration laws."
The suit alleges that ICE and immigration judges are not required to consider whether an immigrant is able to pay the bond, or that the government insists that an immigrant post a cash bond.
The suit argues that authorities don't consider whether alternative forms of supervision (such as electronic monitoring) in combination with a lower bond amount would reduce the flight risk.
In the criminal justice system, a defendant awaiting trial is generally entitled to be released on bail. Judges weigh that individual's community ties and ability to pay when setting the amount. Defendants are also allowed to post a deposit bond (in which they post just a percentage of the full amount) and property can be offered in lieu of a full bond amount as security.
According to the lawsuit, the Justice Department is already on record "calling for an end to the over-reliance on monetary bond, fines, fees, and other financial constraints that disproportionately affect low income individuals in the criminal justice system. However, the federal government's immigration detention policies practices suffer from the same flaws."
The suit was filed on behalf of immigrants such as 37-year-old Cesar Matias, who is seeking asylum from his native Honduras. He was ordered released on a $3,000 bond in November 2012, but he is unable to pay it. At three subsequent hearings, the courts have refused to reduce the bond or consider any other alternative. He has been detained for more than 3 1/2 years. The suit alleges that by setting bond the government has already determined that immigrants like Matias do not pose a threat to the community.
A spokesman for the Justice Department declined to comment on the lawsuit.