

The Fight Against Discretionary Detention

In April 2016, the ACLU filed a class-action lawsuit in Los Angeles, seeking to require the government to consider ability to pay when it sets bail bonds for immigrants. The suit succeeded. Cesar, our lead plaintiff, was ultimately released from detention, and in a major legal victory, a federal appeals court required for the first time that immigration authorities consider people’s financial circumstances when setting bond as well as their eligibility for release on alternative conditions of supervision.

However, these protections only extend to the people within the jurisdiction of one of the twelve regional U.S. appeals courts, and the majority of the country lags far behind. Since taking office, the Trump administration has dramatically increased the use of immigration detention, with the detained population reaching record highs. This blanket increase is happening to people in all different immigration circumstances – including those eligible for release on bond or other conditions of supervision. Since most immigration courts do not require immigration judges to consider someone’s finances before setting bond amounts or alternatives to bond, advocates have predicted that more and more people will receive a bond they cannot afford.

A new ACLU analysis of data from the Department of Justice’s Executive Office for Immigration Review (EOIR) suggests that ICE is indeed detaining more and more immigrants who may have previously been released, making the arbitrariness of the immigration bond system an even more important problem.