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March 30, 2022

Settlement Requires ICE and Judges Consider Ability to Pay Bond

LOS ANGELES — In a major legal victory for immigrants' rights, a federal court has approved a settlement that prohibits U.S. Immigration and Customs Enforcement (ICE) and immigration judges from setting unreasonable bonds for detained immigrants by failing to consider their financial resources.

Previous to this case, the government was not required to consider ability to pay when setting bond for individuals facing deportation. Many immigrants remained incarcerated for months or even years simply because they could not afford the bond.

As the late Ninth Circuit Judge Stephen Reinhardt put it in a 2017 ruling in the case, “While the temporary detention of non-citizens may sometimes be justified by concerns about public safety or flight risk…no person may be imprisoned merely on account of his poverty."

The landmark settlement brings to an end the class-action lawsuit, Hernandez v. Garland, originally filed in 2016 and litigated by the American Civil Liberties Union, the ACLU Foundation of Southern California, and pro bono attorneys from Skadden, Arps, Slate, Meagher & Flom LLP and Mayer Brown LLP. The settlement was filed in U.S. District Court for the Central District of California. 

“The settlement puts a stop to the government’s shameful practice of incarcerating immigrants without even considering their ability to pay a bond,” said Michael Kaufman, the Sullivan & Cromwell Access to Justice senior staff attorney at the ACLU SoCal. “The Constitution forbids incarceration based on poverty, for citizens and noncitizens alike.”

Cesar Matias, a native of Honduras, was a named plaintiff. He fled to the United States to escape the persecution he suffered on account of his sexual orientation. In Los Angeles, Matias worked as a hair stylist and in a clothing factory. 

He was arrested by ICE in 2012 and locked up in the Santa Ana Jail while his application for asylum was being decided. Bail was set at $3,000. But Matias had no means to pay that bond and he remained in jail for four years.

“I’m proud to have participated in this lawsuit to help other immigrants,” Matias said. “I hope no other people will be forced to be detained for years because they cannot afford their bond.”

The settlement requires ICE and immigration judges in Southern California to:

  • Consider a detained person's financial circumstances and financial ability to pay a bond.
  • Not set bond at a greater amount than necessary to ensure the detained person's appearance at all future immigration proceedings.
  • Consider whether the detained person may be released on alternative conditions of release.

“No one should be locked up because they don’t have the money to buy their freedom,” said Michael Tan, deputy director of the ACLU Immigrants’ Rights Project. “The settlement will help put the brakes on our out-of-control immigration prison system and provides a model for reform throughout the country.”

Several prominent organizations and individuals filed amicus briefs supporting the class-action lawsuit, including the American Bar Association and nine former immigration judges.

“By institutionalizing constitutionally required practices, the settlement will ensure that conditions of release, whether a money bond or some non-monetary alternative, will better serve their purpose while also not punishing those who cannot pay,” said Doug Smith, who worked on the case as an attorney with Skadden, Arps, Slate, Meagher & Flom LLP and then with Mayer Brown LLP. 

Read the settlement: