Alien Poverty Must Be Considered in Bail-Setting

The federal government must take into account an alien’s poverty and inability to pay bail before they are detained on immigration holds, so long as they are not dangerous or a flight risk, a federal appeals court held Monday.

“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,” wrote Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals.

The ruling upholds a preliminary injunction granting a class of aliens facing removal proceedings by immigration officials and who are detained in the Los Angeles region of California.

The government had previously determined that the class members were not dangerous and not enough of a flight risk to merit detention without bail.  But the class remains detained because they are unable to afford bond in the amounts immigration officials set.

The class action lawsuit sought to require immigration officials to consider financial circumstances and alternative conditions of release at bond hearings under the due process and equal protection guarantees of the Constitution.

The lead plaintiff in the case is Xochitl Hernandez, who was born in Mexico in 1976. She immigrated to the U.S. in the 1980s at age 13 and now has five children and four grandchildren, all U.S. citizens. Prior to her arrest, Hernandez lived with family in a rented house in Los Angeles and has few assets or savings.

She was arrested in February 2016 while visiting a friend’s house where police and ICE officers were searching for a suspected gang member. She was not charged with any crime but was transferred to ICE custody and questioned about her identity.

She appeared in court without a lawyer at a bond hearing and was not asked about her finances, nor did the immigration judge consider her ability to obtain a bond. Instead, her bond was set at $60,000, although she was determined not to be a danger to the community and that a bond would mitigate any risk of flight, the court said.

A month later she sought reduction in bond to $1,500 and would be willing to wear an ankle monitor. A week later she was released from custody after filing a $5,000 bond and enrolling in an “alternatives to detention” program and wore an ankle monitor.  She could not afford the $5,000 bond but obtained release through community groups that raised the money for her bond.

Reinhardt rejected the government claim that consideration of financial status is unprecedented. “This is not the first time we have approved of preliminary injunctions that require the government to conduct bond hearings in the immigration context,” he said. In fact, “we have done so at least three times before,” he noted.

“The government has failed to offer any convincing reason why these factors [such as poverty] should not be considered in bond hearings for non-citizens who are determined not to be a danger to the community and not to be so great a flight risk as to require detention without bond,” he said.

Judge Ferdinand Fernandez agreed with the result but partly dissented arguing the injunction was too broad.

Judge Kim Wardlaw sided with Reinhardt in the majority.

Case: Hernandez v. Sessions, No. 16-56829


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