'Insane' immigration bonds: Spiraling costs, Trump policies strain migrant families

Even as the immigration court system becomes more and more backlogged — rising to more than 1 million cases in September — and detention facilities managed by U.S. Immigration and Customs Enforcement have hit record levels, holding more than 50,000 people nationwide, immigration officials are seeking much higher bonds for immigrants, or refusing them altogether.

In a recent Arizona case, a woman was told she would be detained unless she paid a bond of more than $40,000. A little more than a decade ago, the median cost of an immigration bond was just $50. Coupled with the spiraling costs, hundreds of millions of dollars that should have been returned to those who filed bonds and who complied with their legal responsibilities have instead been held back by federal authorities.

When someone is detained by federal immigration officials and taken into custody, they can request a bond, which acts as a kind of guarantee to ensure that they will attend hearings as their case proceeds through immigration court. Those who pay for a bond agree to follow a judge's orders — even if that ultimately means deportation. The process requires not only financial collateral, but also a sponsor who agrees to support that person, and immigrants must prove that they are not a danger to the community, nor a flight risk. 

Immigration advocates and lawyers say that both the courts and immigration officials are seeking increasingly higher bond amounts, and one particular case in Tucson illustrates how some bonds can be set fundamentally beyond an individual's reach.

The price to bail someone out of federal detention has jumped dramatically, shifting from what was once a financial guarantee to a price that, as one Tucson attorney argued, could outstrip people's ability to pay. One woman in Tucson faced a bond set at $43,500 — an amount far beyond national averages.

In 2006, the median price of an immigrant's bond was around $50 with the maximum set around $2,000, but two years later, the median price grew 100 times to nearly $5,000, and that number has only increased—last year, the median was $8,000—according to data compiled by the Transactional Records Access Clearinghouse.

And, of those just five percent were less than $2,000, while nearly 40 percent were more than $10,000, reported TRAC, a non-partisan project based at Syracuse University.

Over the last two decades, there have been about 87,000 bond hearings in Arizona, and of those, around 55 percent of people were granted some kind of bond, most of them at the court at the Florence Detention Center, a cluster of buildings along a flat plain of desert and farm country in Pinal County. 

Overall, around 14,000 people who received bonds were ultimately ordered to be removed, while around 6,000 were granted some form of relief. Around 5,100 cases were closed, and another 2,800 cases were simply terminated — though it's unclear why based on data from the Justice Department and TRAC.

While the Trump administration has further restricted the ability of detained migrants to obtain bonds at all, with a decreasing percentage of those in the immigration court system obtaining relief, the initial large spike in the cost of bonds took place during President Barack Obama's second term.

TucsonSentinel.com's examination of federal data showed that the median cost of a bond was flat from 2008 through 2012, then it began to climb — more than doubling to a peak in 2016.

Most of the cases included people hailing from Mexico, however, immigrants from Guatemala, Honduras, and El Salvador also received bonds. And, significant majorities of people from Cubans, India, Russia, and China were also able to receive bonds. 

Meanwhile, around 13,000 cases were listed as pending. 

An 'insane' bond price 

On August 15, 2019, Miriam Perez had just dropped her kids off at school, when she was pulled over for a cracked windshield by a trooper with the Arizona Department of Public Safety. Perez could not show she was legally in the United States, so the trooper called Border Patrol, and she was detained. Perez was later taken to the Eloy Detention Center, and soon she met with an immigration officer, who set her bond at $43,500. 

"This was just extraordinary," recalls Mo Goldman, one of two lawyers who worked on Perez's case. "She has three U.S.-born kids, she's been here for two decades. How is she any sort of flight risk, or danger to the community? What warrants the government setting the bond that high?" 

Rachel Wilson, an immigration attorney in Tucson, picked up the case, and immediately contacted friends and colleagues about the bond amount, trying to understand, "Why is this so high?," she said. The official at U.S. Immigration and Customs Enforcement had been clear on the bond amount—it wasn't a mistake, she recalled. Perez was the mother of three children, ages 9 to 17, and she didn't have a criminal record; rather she had overstayed her visa, Wilson said. 

"I thought maybe I just wasn't up on what was normal, and I was told that it was extremely high: bonds are normally set at $7,500," Wilson said. "But this was just running into the absurd. This was an insane price for a bond."

Even as Perez waited, friends were already launching a GoFundMe to raise money for her bond. Paisanos Unidos, an immigrant-rights group based in Tucson, launched the campaign, and though they had around $7,000 for Miriam, they asked for another $3,000, not realizing that the actual bond was more than six times what they had in their coffers. 

"This GoFundMe campaign is to help Miriam raise whatever portion of the bond Paisanos is unable to pay — Paisanos will be working hard to raise our portion of the bond," wrote Margot Veranes. 

Wilson sought a bond hearing, and she was lucky to get one in two weeks. But, in the meantime, Perez was in Eloy, and her kids were at home, waiting.

Bond hearings and median bond costs

Bonds a mechanism to 'encourage' people to appear in court

There are essentially two ways for an immigrant to be able to put up a bond after they are detained.

The first is through U.S. Immigration and Customs Enforcement, where officials can set a bond based on a number of factors, including immigration history, criminal history and community ties. The second is through the immigration court system, where judges who work for the Executive Office for Immigration Review, a part of the Justice Department, can consider bond amounts.

In fiscal year 2019, ICE released around 52,000 people on bond, and of those around 19,500 were set by ICE officers, said Yasmeen Pitts-O'Keefe, an agency spokeswoman. A year earlier, around 54,000 people were released on bond, and around 20,500 of those amounts were set by ICE officers.

"Immigration bonds serve as a mechanism to encourage aliens to appear in immigration court; they are not punitive," said Pitts-O'Keefe. "Bond decisions are based on an alien's flight risk, and the potential threat to public safety," she said.

Each case is "reviewed individually," she said, adding that ICE officials will take into account factors like "immigration history, criminal history and community ties."

Offices will also consider the "manner of entry" into the U.S., their current immigration status, their "history of immigration arrests and violations" and their ties to the community, including a consideration to see if the person will become a "public charge," or attempt to use public services—though very few public services are available for immigrants without legal status. ICE officers also consider the "probability" that a person will attend court appearances and otherwise comply with their conditions for release."

"Although it is not uncommon for an alien to be afforded the option to bond out of custody, there are many exceptions and complexities," she said, adding that "in some circumstances, individuals are subject to mandatory detention by law."

For immigration court judges, bonds are determined by "applicable statute, regulations, case law and the facts of the case," said Ashley Tabaddor, president of the National Association of Immigration Judges. "Different categories of individual may or may not be eligible for bond," she said, adding that "those who are eligible, the court will have to look at the applicable standards, burdens of proof of the evidence in the case."

EOIR refused to comment on this story despite repeated requests by TucsonSentinel.com.

The right to request a bond is built into the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, but in the last two years, the Trump administration has sought to curtail those rights.

In April 2019, Attorney General William Barr overrode a 2005 decision from the Bureau of Immigration Appeals, and declared that asylum seekers "after establishing a credible fear of persecution or torture" are "eligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole."

Barr's decision was one of a series of moves made by Trump administration officials to push immigration courts — managed by the Justice Department, rather than being independent federal courts — into making tougher decisions, faster. Along with altering BIA decisions by fiat, both Barr and former Attorney General Jeff Sessions set new rules for judges, instituted a computer dashboard that let's judges know when they're falling behind, and then went after the union that represents judges in the immigration court when they complained.

Immigration advocates immediately sued, and on July 3, a federal immigration judge ruled against the government. In her ruling, U.S. District Judge Marsha Pechman said that was unconstitutional to indefinitely detain migrants who fled to the U.S. seeking asylum protections, and reversed Barr's directive.

"The court finds that plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process, which includes a hearing before a neutral decision maker to assess the necessity of their detention and a likelihood of success on the merits of that issue," Pechman wrote.

A spokesman for the White House used a commonly-made argument about the decision, calling Pechman a "single, unelected judge" and argued that her nationwide injunction "prevents the government from ensuring the detention of those aliens who cross the border unlawfully until the completion of their immigration court proceedings."

And, the Supreme Court held last year, that immigrants who are supposed to be picked up by federal immigration agents "when they are released" from criminal custody, cannot demand a bond hearing, but rather have to be detained until their cases are resolved. The decision upended a lower court's decision, and set up a potential fight over immigration detention's shift to an increasingly indefinite system.

"I fear," wrote Justice Stephen Breyer in his dissent on the case, that the ruling will "work serious harm to the principles for which American law has long stood."

'Vast majority' show up for court

Administration officials have regularly complained that people do not show up for court hearings, but years of data undercut that argument.

As TRAC noted, the "vast majority of individuals" who are released on bond before an immigration judge "turned up for their court case."

During 2015, court records showed that 86 percent of people came to their court hearings, and only 14 had their cases closed "in absentia." And, as TRAC noted, the appearance rate of those released by judges far outnumber those released under immigration officials. While only about 14 percent of people refused to show up for their hearings under a judge's review, about 23.4 percent of people were absent after they were released by ICE.

And, two of out every three people, who successfully argued for a bond that year, were able to argue that they should remain in the United States, TRAC said.

TRAC also noted that nationality affected bonds. Around three-fourths of people from Nepal or India are granted bond, but only 11 to 15 percent of Cubans receive bonds. Similarly, Chinese nationals were less likely to receive bonds.

Mexicans still remain the largest group of people seeking bonds, followed by immigrants from Guatemala, and then India. However, as TRAC noted, there's been a "three-fold" increase in the number of Indians needing bonds, perhaps linked to the Trump administration's press to target more long-term residents, including those who have overstayed visas, rather than entered through the southwestern border.

Three women from Guatemala wait to seek asylum in Nogales, Sonora. (Paul Ingram/TucsonSentinel.com)

At the Eloy Detention Center, from October 2017 to November 2018, about 2,093 Mexican nationals had bond hearings, and of those, about 40 percent were granted.

The average bond of nearly $8,000. Meanwhile, about 327 Indian nationals sought bonds, and while more than two-thirds were granted bonds, their bond amount was more than double those of Mexican nationals, at an average of $17,500.

And, bond amounts can also be driven by nationality. People from the Philippines can expect to pay around $4,000, while those from Bangladesh can spend $10,000 to $20,000.

The increase doesn't appear to be linked to the agencies picking up more serious criminals, either. In the last 27 months, there was a drop in the number of people who were detained and accused of serious crimes. In fact, the number of serious criminals declined by more than 1,200 people, even as the number of people in detention increased by nearly 9,000 people.

"Immigrants who had never been convicted of even a minor violation shot up 39 percent," TRAC noted.

Even as the cost of a bond has crept up, the backlog of cases continues to grow, and more people are languishing in ICE detention centers — more than two-thirds without a criminal conviction.

On the last day in April, ICE held 50,000 people in detention centers nationwide, including nearly 2,000 people in Arizona detention centers. Of those, nearly 32,000 had no criminal conviction, a substantial shift from four years earlier, when just under 40 percent had some criminal conviction on record. The shift is largely due because Trump administration officials have pushed ICE to seek out immigrants regardless of their criminal history, rejecting the Obama-era priorities that tried, but often failed, to focus the agency on so-called "criminal aliens."

"ICE's increased focus on detainees with no criminal conviction is driving the expansion in the total number of detainees across the United States," TRAC reported.

In Arizona, about 4,405 people were in ICE custody, and of those, around 3386 had no criminal conviction. For those who had a criminal conviction, the largest group had violated U.S. immigration law, while only a few dozen were linked with the most serious crimes, including five people who were held because they had been convicted of a homicide. Almost 100 were were classified as asylum seekers or refugees, the data from EOIR showed.

Meanwhile, the immigration backlog has grown to around 1,023,000 cases, with the average number of days a case remains pending reaching 696 days, or nearly two years.

EOIR announced proudly that in 2019, the agency had completed 275,000 cases, "the second highest number of case completions in EOIR's history."

"This number marks an increase of roughly 80,000 case completions from fiscal year 2018," said EOIR, adding that the 2019 numbers are "nearly double the number of completed cases from just three years ago."

EOIR said that it was hiring new judges and expanding court capacity, but that with 444,000 news cases filed by DHS in 2019 alone, the backlog will likely continue for years.

At the current rate, it will take the agency roughly four years just to deal with current cases.

"Our immigration courts are doing everything in their power to efficiently adjudicate immigration cases while respecting due process rights, but efficient adjudication alone cannot resolve the crisis at the border," said EOIR Director James McHenry, in a news release from the agency. "While EOIR is doing an unprecedented job adjudicating cases fairly and expeditiously, the nearly one million case backlog will continue to grow unless Congress acts to address the crisis at the border."

Outcomes after bond hearings

Working on bonds, one pile of paper at a time

On a Thursday, in early September, the stadium lights at Tucson's Pueblo High School brightly illuminated the empty football field, while inside, the school's cafeteria was a hive of activity, as dozens of people worked through paperwork—filing out applications or attending a brief overview of how to become a citizen.

Nearly every Thursday night, volunteers with Keep Tucson Together have worked to help people deal with their immigration cases by hosting a clinic at the high school, an expansion of efforts that began at Southside Presbyterian, an activist church that has long been connected with Tucson's Sanctuary movement.

A man waits for his turns to review paperwork for a bond during one of Keep Tucson Together's events, hosted at Pueblo High School. (Paul Ingram/TucsonSentinel.com)

At the clinic, the volunteers help file applications for Deferred Action for Childhood Arrivals, start citizenship applications, give legal advice, and begin the process of bonding out those in detention.

At a long table cafeteria table, three University of Arizona law students worked to manage bonds, using a laptop and several plastic boxes overstuffed with paperwork.

"They need to put a lot together," said Cory Rodes. "Not every case is the same, but the each need to tell a story about the person, and that they will continue with their case after the bond is paid."

"And, you know most do," Rodes said, pausing to laugh for a second, before reviewing the forms that families need to submit, and a database that the team uses to track bonds.

"We've been seeing the amounts go up some, and I haven't seen the minimum of $1,500 since June," Rodes said. "And, what happens when they're not represented? The bond might be lower, and that's not clear if it's borderline cases, or something else," Rodes said.

The team manages about 50 to 60 cases per week, and at least 3 cases are new referrals, indicating that new people are still getting picked up in Tucson, Rodes said.

To file for a bond, a family needs to submit a sponsor form, indicating who is responsible to ensure the person arrives at court, along with tax forms, payroll documents, rental agreements, and other documents. They should also submit letters from people who know them, indicating "what kind of person they are," Rodes said. "Families need to show to the judge that the person is not a flight risk, not a danger to society. They need to build a story for the judge."

As Rodes described the process and forms, a women introduced herself only as Mary and explains carefully and quietly that her husband had been arrested by the Pima County Sheriff's Department, and that he was turned over to Border Patrol. As Rodes explained the system, and the case she'll need to build, she holds her chin to her purse, and listened.

"I'm just worried for my daughter," she said. "She's really clingy with her dad; she needs him."

As she talked, Claire McGuire, her hand wrapped in a brace, types away at the database, and listened as Rodes asked questions, while Bethany Munson readied a bond package nearly a foot thick for a lawyer's signature.

Outside, Gerardo Lines worried about the cost of a bond for a nephew, who has "gotten in some kind of trouble—I don't know," he said.

"We don't have much, my wife works, I work. We can make it, I think, but it's thousands...." he said, letting that last syllable collapse into a sigh. "We'll get him, I just don't know how."

Margo Cowan meets with clients during a Keep Tucson Together event. An immigration lawyer for more than 40 years, Cowan worries about the rising prices of bonds for immigrants. (Paul Ingram/TucsonSentinel.com)

"A bond is not supposed to be punitive," said Margo Cowan, an immigration lawyer who has worked in Tucson for more than 40 years, and was one of the founders of the city's Sanctuary movement. "But this, this is horrible. We're seeing bonds are that beyond people's ability to pay."

Cowan is one of the leaders of Keep Tucson Together, and sat along with two other immigration lawyers at a long lunch table in the cafeteria, dispensing advice and beginning to build new cases.

"You can't just set a bond for someone that they cannot pay; the bond is supposed to be about due process," Cowan said. "This is just horrible."

Jayashri Srikantiah, director of Stanford's Immigrants' Rights Clinic, agreed with Cowan.

"The trend shows that higher bond are not correlated with higher appearance rates," Srikantiah told TucsonSentinel.com by phone. "All it does is punish people who are poor by locking up people who just can't afford their bond."

Using open-records requests, Srikantiah and researchers from University of California at Davis found that ICE was holding on to about $200 million in bond money that belongs to people who have been in the agency's custody, but had yet to be returned.

Srikantiah and her team shared the data with the Washington Post, which reported on their findings in April.

The data, which dates back to 2018, also showed that the pot of money grew by $57.3 million from September 2014 to July 2018, Srikantiah said. The data was hard-won, in part because while other detention systems like the State of California's have publicly available data, "by contrast ICE's systems are largely surrounded in secrecy" and are not routinely shared, she said.

"There's a consistent nationwide trend, and there's no reason for bond amounts to suddenly go higher," said

Raising funds

"In the last five years, there's been a big increase in bonds. Some are five, some are 10 times as much," said Jessica Rodriguez, a coordinator for Southside Workers Center, a long-term effort hosted by the Southside Presbyterian Church. "It used to be, around $500 to $1,000, and then it went to $5,000 to $10,000 per person."

"You have to understand, people when they get pulled over, they're not just facing a ticket; they're facing detention, deportation. They're facing a loss. And, their families, they're losing access to that person, to their mother or father. There's this emotional distress that just ripples out," she said.

Perez's case also highlights how local law enforcement, including agencies like the Pima County Sheriff's Department and the Tucson Police Department, along with the Arizona Department of Public Safety, can work on conjunction with Border Patrol and ICE, she said.

"She had a cracked windshield, and now she's facing deportation?" Rodriguez asked. "That's just an excuse from them."

In November, a national campaign, led by Refugee and Immigrant Center for Education and Legal Services and the National Bail Fund Network recently posted bond for 180 people at detention centers nationwide, said Pilar Weiss, the director of the National Bail Fund Network. Another 20 may be released, Weiss said.

With help from dozens of local groups, as well as Al Otro Lado, Freedom for Immigrants, Eastern Iowa Community Bond Project, the Arriba Worker Center Las Vegas Unity Bond Fund, Minneapolis Freedom Fund, Beyond Bail & Legal Defense Fund, Connecticut Immigrant Bail Fund, and First Friends NY/N, the group posted bonds at 44 immigration detention facilities in 21 states.

That includes 23 people who were held at three Arizona detention centers, including Florence, the La Palma Correction Center, and Eloy Detention Center.

The median bond was about $11,000, though bonds ranged from $1,500 to $35,000, Weiss said.

Rodriguez has worked on public campaigns to raise awareness and money for migrants. "Some campaigns work well," she said. "They work because there's a video of the stop, or there's a public campaign, or there's something terrible about it. But, other campaigns just don't get much, and so for people to rely on that, it just doesn't work."

"The most effective tool is crowd-funding," she said," and that needs a public case."

She noted that people who have relationships with church groups, or baseball teams, or other social groups do better, "but the people who work and go home, and take their kids to school, and nothing else? For them it's really hard." And, even then, there's only so much money that can be scraped up from GoFundMe.

"And, you have to understand the way that this affects a family, there's a loss and so there's a ripple effect," Rodriguez said. "That's put stress on the family, on children, on everyone. All because of cracked windshield?"

Attorney Wilson went to the judge, and argued Miriam Perez's case, and the judge lowered the bond requirement to $1,500.

"You know, in a weird way, Miriam was lucky she even got a bond, and was told to go see the judge," Goldman said. "Some people languish in detention centers, or they can't get a hearing, and so they can either wait, or just figure it out. And, some people just pay the bond, and they think of it as as fee, and never recover it."

"She was lucky, in many ways," Wilson said. Because Perez is a member of Paisanos Unidos, people were able to help her get documents together, and prepare for the bond hearing. However, Wilson worried about the hearing because judges, under increasing pressure from the administration are less likely to grant bonds, or even release on recognizance.

"Judges will often not listen to arguments that my client is not a flight-risk. They'll argue that the person's return to court is 'speculative,'" she said. "But, unless someone has a slam-dunk case that they can win at the outset — which really means there's been a huge mistake — people are considered flight risks."

"I think it's important to remember that compared to the criminal context," she said, "the risk is simply lower. Yet, we see time and time again that bonds are higher, or bonds are denied altogether. In the criminal context, someone in these circumstances would easily get out on a bond."

She did note that one thing did seem to nudge judges in the right direction: the presence of a Presbyterian minister wearing her collar in the courtroom. Another client was released after the judge noticed that Alison Harrington, the pastor for Southside Presbyterian, was in the courtroom's gallery.

"My client overstayed his student visa, and they released him on his own. Why was he any different than Miriam?"

"Miriam is a law-abiding person, she never caused a problem to anyone, and now it's cost the government tons of money to detain her, process her in court, and continue her case for a few more years," Wilson said. "She's not a threat to anyone."