EAH Immigration Blog

Immigrant Detention: Bond and Detainers Challenged, Private Detention Continues; Women and Children Released in Texas

The detention of massive numbers of immigrants is gaining an increasing amount of attention as immigrant advocacy groups continue to push for change, often filing lawsuits to challenge government practices. Some recent cases involve bond procedures and ICE detainers.

ICE detainers recently came under fire in a class action lawsuit filed in federal district court in Illinois. ICE frequently issues detainers to local law enforcement agencies requesting that a detained or incarcerated immigrant be held for an additional 48 hours after their release date so that ICE can transfer them to an immigration detention center and commence removal proceedings. This practice was challenged as essentially holding people without a warrant and the court agreed, declaring such detainers void.

In a post-detainer situation, immigrants who find themselves in ICE custody often make their first appearance before an immigration judge requesting a bond to allow their release. However, the bond amounts pushed for by ICE and set by immigration judges are sometimes impossible to pay, resulting in continued detention, usually for months. Another class action lawsuit was recently filed in federal district court in California challenging the current bond procedures, especially the practice of denying a second bond hearing to those who have made good-faith attempts to post the bond but simply could not. The court issued a preliminary injunction requiring ICE and immigration judges to consider a detainee’s ability to pay the bond, not set a bond higher than that needed to ensure future court appearances, and consider alternate conditions of release.

However, the Supreme Court may have the final say in bond proceedings in the coming months. Arguments were heard in early December in Jennings v. Rodriguez, where lower courts had held the indefinite detention of immigrants without a bond hearing was not permitted. The Supreme Court will be issuing a final decision on this, and will probably hear other immigration cases now working their way through the courts, like the ICE detainer case. The use of private detention centers remains a hotly contested topic; other federal agencies are abandoning the use of them. A group of reputable immigration judges made that same request of ICE, but according to a December DHS report, private detention centers for immigrants will remain in use.

Meanwhile, in early December, some 450 women and children were released from two family detention centers, after a Texas state judge found that the facilities more closely resemble jails than child care centers. The state lawsuit focused narrowly on emergency rules designed to allow the detention facilities to meet Texas’s child care licensing standards. But the state case arises out of ongoing federal litigation, which has put ICE on notice that these facilities are not acceptable places to house kids. Last year federal district court Judge Dolly Gee held that the family detention policy violated a 1997 court settlement requiring that undocumented children be housed in the least restrictive setting possible, and generally favoring their release from detention. In response, the Texas Department of Family and Protective Services issued new rules defining “child care facility” to make it possible for the two detention centers to qualify. The Texas state court ruling invalidated the state’s attempt to bend the rules. Without those licenses, the two family detention centers once again run the risk of violating Judge Gee’s federal ruling.

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