One might think that posting bond in the immigration system is a straightforward process. Immigration authorities set bond. A person pays the bond amount, and the incarcerated person is released. In reality, nothing could be farther from the truth.
The process for posting bond is unclear across the board, resulting in confusion among those attempting to make bond payments and causing people to remain in detention longer than necessary.
A recent lawsuit filed under the Freedom of Information Act (FOIA) seeks to make U.S. Immigration and Customs Enforcement (ICE) bond payment procedures public. Only certain individuals detained by ICE are eligible for bond. If ICE refuses to set bond or the bond is too high, an individual may ask an immigration judge to revisit the bond amount. Once a bond is set, an “obligor” can pay the bond on behalf of the person detained. The obligor—a bond company or an individual, for example—gets their bond payment back by ensuring that the released immigrant meets the conditions ICE imposes on them. The lawsuit focuses on the processes in place after bond has been set. This step takes place only after an individual has completed all preliminary steps necessary to obtain bond.
The overwhelming difficulties in posting the bond have become obstacles to ending a person’s detention. These challenges have only been exacerbated by the lack of publicly available information.
The examples in the FOIA lawsuit are shocking.
Nonprofit bond funds that regularly post bonds for individuals, for example, report that ICE only permits adults who are U.S. citizens or lawful permanent residents to serve as obligors. This contradicts existing statements in a 2014 ICE Bond Handbook that states other groups of noncitizens—like those on an order of supervision, in removal proceedings, or with stays of removal—also may post bond.
Due to the lack of consistent guidance, these nonprofits have observed discriminatory treatment. Volunteers who are people of color and have attempted to post bond have faced questioning about their identification. Meanwhile, white volunteers have not been subject to similar scrutiny.
Hours of operation for offices that accept bonds also are unclear. To pay bond, an individual must physically appear at one of the ICE offices around the country that accept bond payments. Though an existing ICE memo states that these offices will process payments between 9:00 AM and 3:00 PM local time, bond funds report that ICE offices often are not open for stretches of time during that period or require bonds be processed by 3:00 PM in the time zone in which the individual is detained.
To end these arbitrary and unfair bond processes, the lawsuit seeks to make ICE comply with certain FOIA provisions that require agencies to proactively disclose procedures and agency guidance like ICE’s bond payment protocols.
The first FOIA provision, known as the “reading room” provision, requires agencies to make public policies and interpretations that have been adopted by an agency but not published in the Federal Register. This provision also requires an agency to publish manuals and instructions provided to agency staff that affect members of the public. Any of ICE’s bond payment policies as well as staff manuals and instructions addressing payment of bond should be made available to the public under this provision.
The second provision, sometimes referred to as the Beetlejuice provision, requires agency records that have been released to any person and requested three or more times to be made publicly available. A 2014 ICE Bond Handbook was released through FOIA to at least one FOIA requester and has been requested at least three separate times. Under this provision, ICE should make the Handbook available on its website.
ICE’s failure to comply with FOIA and the consistent lack of information about the agency’s protocols for processing bond payments, including ICE offices’ hours of operation and forms of accepted payments, have devastating real life consequences. Individuals attempting to post bond have been racially profiled and subjected to inconsistent policies and procedures. Most importantly, they have not been able to access detained individuals who have every right to be united with family members and be free from detention.
Hopefully, with this suit and the public posting of bond payment procedures, individuals will no longer have to rely on inaccurate or outdated guidance and or be subjected to the whims of ICE officers. Instead, they will have what the law requires: publicly available guidance that levels the playing field for those seeking the release of a loved one or community member from ICE custody.