SAN ANTONIO, Texas — Federal judges are setting unusually large bonds for detained immigrants, immigration attorneys say, including for parents who were separated from their children at the border, a shift that has delayed the parents’ release even as the Trump administration insists it is making every effort to bring families back together.
Judges in past administrations routinely set large bonds for detained immigrants, often as high as $7,500, and well in excess of the $1,500 minimum required by law. But the practice appears to have grown under President Donald Trump, as judges respond to new Department of Justice guidelines aimed at reducing legal and illegal immigration.
The change is significant because the bond process is a key, if often overlooked, part of the immigration court system. For most detained immigrants, securing a bond is their only chance to live outside of detention in the United States while the federal government determines whether to deport them or allow them to remain in the country, a procedure that can take months, or in many cases, years, to complete. As of last month, the average wait time for a pending asylum case was more than 700 days, according to a database maintained by Syracuse University.
A ‘massive departure’
The Obama administration directed immigration judges to use their discretion to release eligible immigrants on low-cost bonds or without any bond at all, a form of parole known as “release on recognizance.” That is no longer the case under President Donald Trump, more than a dozen immigration lawyers and legal aid groups who represent detained immigrants said in interviews for this story.
Instead, immigration court judges — as well as officials from U.S. Immigration and Customs Enforcement, who also have authority to grant bonds — are increasingly denying bond requests altogether, or setting them at amounts in excess of $10,000, making them unaffordable for many immigrant families entering the country. One immigration attorney, who asked not to be named to discuss her clients’ cases, said it was “not rare” to see bonds of $25,000 for asylum seekers.
“It’s a massive departure, in the sense of removing common sense discretion,” said Alfredo Lozano, an immigration attorney, referring to administration policymakers and immigration judges.
Erica Schommer, a law professor at St. Mary’s University in San Antonio, said there was no reliable data showing exactly how many immigrants were affected by these changes. But she and other attorneys estimated that “thousands of families have gotten higher bonds since Trump took office.”
It’s unclear how many detained parents separated from their children at the border remain in custody due to their inability to pay bond.
Numerous immigration attorneys also said the rise in unusually high bonds continued even after families were separated as a result of the “zero-tolerance” policy that took effect in May, despite public assurances from senior administration officials that the government was trying its best to reunite parents and children.
“The bond setting process with these high bonds is leading to lengthier time in detention, and lengthier periods of separation,” said Denise Gilman, the director of the Immigration Clinic at the University of Texas at Austin.
A spokesperson for the Department of Homeland Security wrote in an email that there was no “significant deviation” in the bond amounts that ICE officers set today compared to those under previous presidents.
The official denied that ICE officers were setting higher bonds at the request of the Departments of Homeland Security and Justice, as part of the Trump administration’s crackdown on illegal immigration. “There has been no change to bond policy,” the official said.
The average immigration bond set by ICE in fiscal year 2016 was $9,000, the official said. But he did not provide any documentation to corroborate the figure, and the agency did not respond to a request for data on the number or average cost of bonds granted to detained immigrants who were recently separated from their children.
The Homeland Security official also referred questions to the Executive Office for Immigration Review, the office within the Department of Justice that oversees federal immigration court.
On Wednesday, a spokesperson for the Department of Justice said in an email that the Executive Office for Immigration Review does not keep data on the average bond amount for immigrants in detention, or the percentage of bond requests that are approved.
Another Justice Department spokesperson followed up Thursday to say that the office did keep some statistics on median bond amounts set by the immigration court, but that the office was not required to record the amounts in its database.
The official also pointed to an annual report on immigration cases prepared by the Executive Office for Immigration Review. The latest report showed the immigration court system completed 61,976 bond cases in fiscal year 2016, down from 78,221 in fiscal year 2012, the first year in the report.
Inside the complex bond process
The bond process follows a complex set of guidelines. In general, however, immigrants’ chances of obtaining a bond are based on a few key factors: how they entered the country, whether they have strong ties to family already living in the U.S., and the strength of their asylum claim.
The Immigration and Nationality Act requires the federal government to detain immigrants who enter the country legally by presenting themselves at a border checkpoint and claiming asylum, as well any immigrants who are caught illegally crossing the border. Once in custody, immigrants are interviewed by government officials to determine if they have a legitimate claim to asylum. If it’s determined that they do, they become eligible for release on bond.
ICE officers can release immigrants at any point in the process. Under Obama, the agency frequently released adult immigrants into the country without bond, as long as they did not have a serious criminal record or pose a national security threat. But immigration attorneys said that practice, often referred to by administration officials as “catch and release,” has largely ended under Trump, a change that has forced immigrants to fight their cases from detention — unless they can get out on bond.
Now, as more judges set higher bonds, immigrants are increasingly spending more time in detention, immigration lawyers said.
“We’ve consistently seen the bonds creep up and up and up over the last year and a half,” said Jodi Goodwin, an immigration attorney who runs a law practice in Harlingen, a small city on the U.S.-Mexico border in southern Texas. “From what we’ve normally seen in the past, which was an average of $3,500 to $5,000, to now $10,000.”
The Trump administration has consistently said that stricter enforcement measures are needed to curb illegal immigration.
Gilman, who represents immigrants in court, said in an interview that one of her clients, a woman named Jessica, recently received a $12,500 bond after being separated from her two sons at the border in March. The woman, whose last name Gilman asked not be revealed to protect her identity, said she had fled El Salvador to escape gang violence.
After they were detained, the woman’s children, who are four and 10 years old, were transferred to the Office of Refugee Resettlement, the agency within the Department of Health and Human Services that oversees the custody of immigrant children, and later released to relatives. But the mother is still in detention, while advocacy groups attempt to raise the bond money to get her out, Gilman said.
Unlike in the criminal justice system, where defendants can be released on bail, detained immigrants in immigration court proceedings, which are civil, must have their bonds paid in full to leave detention. Bail is not allowed, a factor that makes it even harder for immigrants like Jessica to be released from detention.
Another crucial difference of immigration court — compared to criminal cases — is that the government is not required to provide a lawyer for immigrants who cannot afford to hire an attorney or find free legal representation. As a result, just 14 percent of detained immigrants in the U.S. were represented by lawyers during their deportation proceedings from 1951 to 2013, according to a report by the American Immigration Council, published in September 2016.
A separate study by the Vera Institute of Justice found that in New York State, an immigrant’s odds of remaining legally in the country increased from 4 percent to 48 percent when they had an attorney. The findings mirrored national statistics on the benefits of legal representation in immigration court.
The dearth of legal representation could impact the next phase of the family separation crisis, which has been closely intertwined with the immigration bond process.
A federal judge Tuesday ordered the Trump administration to reunify detained parents and their children within 14 to 30 days, depending on the age of the child, and stop separating families at the border. But it’s unclear how the administration will quickly reunify adults like Jessica, who are detained by the Department of Homeland Security, with their children, who are in the custody of a separate federal agency.
Moreover, the injunction did not stop the Trump administration from prosecuting immigrants who cross into the country illegally, or block judges from setting high bonds that most immigrants can’t afford to pay. As long as judges keep setting higher bond amounts, detained immigrant adults will likely continue to spend long periods of time apart from their families.
“The Department of Homeland Security and the Justice Department have been making claims about how hard they’re working to reunite families, when actually they’re working hard to keep families detained through the bond process,” Gilman said.
Immigration attorneys and legal aid groups said the administration’s claim that nothing has changed contradicts what they’re seeing on the ground in immigration courtrooms across the country.
The practice of consistently setting large bonds represents “a dramatic change from the Obama administration’s policies,” said John Sandweg, who served as the acting director of U.S. Immigration and Customs Enforcement.
“I’m not surprised if the Department of Justice is directing courts to step up and be tougher on bonds. The administration is trying to keep as many people in detention as possible” to hasten their deportation, Sandweg said.
Shifting grounds for asylum
In one case that is becoming increasingly common, a judge recently set a $9,000 bond for an immigrant mother after she was detained and separated from her two-year-old child at the Texas border. Schommer, the St. Mary’s law professor who is representing the woman in court, shared some aspects of her client’s story on the condition that the woman remain anonymous.
The woman based her asylum claim on being a victim of domestic abuse in her home country, Schommer said. At her bond hearing, according to Schommer, the immigration judge said he was setting a high bond because he did not think the woman’s asylum request would be granted under a ruling issued this month by Attorney General Jeff Sessions. The ruling held that gang violence and domestic abuse are no longer grounds for seeking asylum.
Schommer’s client’s case offers a concrete example of an immigration judge making decisions based on the immigration policies set by top administration officials in Washington.
“Obviously, her family does not have the $9,000” to pay for the bond, Schommer said. She said she had turned for help to RAICES, an immigration advocacy group that is raising money to pay for bonds for immigrant parents separated from their children. “We’re in the process of trying to get the money,” Schommer said. “Hopefully we’ll able to get her bond posted this week.”
That might not be necessary if the Trump administration moves quickly to comply with the order to reunify separated families. Even so, the woman will likely remain separated from her young son for at least the next several days, if not longer.
The PBS NewsHour could not independently confirm the story and other similar stories that immigration attorneys related in interviews. Immigrants who are currently in detention or who have family members in the system are often reluctant to reveal details of their cases to the media, out of fear that the information, once it is made public, could hurt their chances of avoiding deportation.
But in repeated visits to three different immigration courts in Texas this week, including one inside the detention center in the city of Pearsall, this reporter witnessed judges consistently deny bonds or set bonds at amounts well above the $1,500 minimum. In several instances, judges set bonds above $10,000, including one for $12,000 and another for $15,000.
Those bond hearings were for immigrants who were detained before the “zero-tolerance” policy took effect. Still, they provided clear anecdotal evidence of the preference on the part of judges for issuing large bonds, and the difficulties immigrants face in navigating the U.S. legal system — especially if they don’t have an attorney. The vast majority of immigrants in the bond hearings witnessed during these visits to the courts did not have legal representation.
“You can see the tide has changed. Not just with enforcement. The tide has changed with the judges’ discretion on bonds ever since Trump came to office,” said Lozano, an immigration attorney. “If they can make it difficult, they will make it more difficult.”