The American Civil Liberties Union (ACLU) has filed a lawsuit in Los Angeles federal court on behalf of a Mexican woman that they hope becomes a class action suit with many additional plaintiffs piling on.
The lawsuit is about the amount of bond set in an immigration removal proceeding, which allegedly she cannot reach. The ACLU, on her behalf, is claiming that federal authorities (certain specified immigration officers with bond-setting powers and immigration judges who can set bond and also review the bonds set previously by the aforementioned officers) have a duty to assess bond amounts based on an individual's economic circumstances and his or her ability to find the resources to post the bond. (One wonders how much it is costing the ACLU to pursue this litigation and whether the locked-up plaintiff would prefer that they put up the bond rather than using her as a poster girl; such is the price of standing on "principle.")
The plaintiff's argument is interesting and perhaps even superficially attractive, depending on your philosophical perspective, but one that should never be allowed to gain traction — although on the Left Coast, and within the jurisdictional boundaries of the federal Ninth Circuit Court of Appeals, it's a topsy-turvy world where anything can happen. (See here and here.)
The posting of bond by detainees being charged with immigration offenses is authorized by Section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226. The purpose behind detention or the posting of bonds in immigration expulsion proceedings is exactly the same as it is in criminal proceedings: first, to ensure the presence of the individual at the trial or deportation hearing; and second, where applicable, to protect the public safety. That is precisely the reason this lawsuit shouldn't go anywhere.
Imagine, for a moment, an individual arrested for murder who comes up for a bond hearing before the presiding judge or magistrate. Does anyone think that the defendant's ability to post bond is an intelligent substitute for ensuring the public safety and his appearance for trial?
But wait, you say, that's an entirely different circumstance than an alien who is charged with civil immigration offenses and detained awaiting her removal hearing. Not always. Consider the situation of an alien serving time at the California State Penitentiary at Chino for various narcotics and weapons offenses who is released into the hands of federal immigration officers who place him in detention to await his deportation hearing. He, too, is an alien in civil removal proceedings. Should the amount of his bond be based on his economic circumstances, rather than public safety and ensuring his appearance in front of an immigration judge?
It is true that the system as it exists can lead to wildly different bond amounts in what sometimes appear to be superficially similar cases. But that's true in the criminal justice context as well. By way of example, in a recent vehicular homicide case in which a drunk, drag-racing illegal alien killed a young woman the day after she graduated from college, the presiding judge assessed a minimal bond amount of $50,000. Needless to say, his bond was posted and he fled, leaving the victim's parents wondering how such a situation could occur in this day and age. It is true that the local ICE office failed to issue a detainer against him, but it is also true that the county jail in which he was being held is in a sanctuary jurisdiction that doesn't honor ICE detainers. And it's also true that the prosecutors didn't argue vigorously that he would be a flight risk with such a de minimis surety bond, even though he had a prior history of court no-shows for vehicle infractions.
As to that $50,000 bond? Keep in mind that, because it was a surety bond, only 10 percent of the actual bond amount had to be put up by the obligor (the man's brother); a mere $5,000. The rest was put up by a bond company, something the presiding judge most assuredly understood.
Immigration bonds also are surety bonds, so that if the facial amount of the bond is $3,000, the alien or whoever becomes the bond obligor on his behalf need only put up $300. That puts a different perspective on things, doesn't it?
There are already nearly a million aliens on the streets of America today who have absconded from proceedings. That's right, nearly a million. That is because many of them realize that losing whatever surety or collateral they put forward is cheap at the price if they can flee and stay hidden long enough. Given a population of more-or-less 12 million illegal aliens — and a shrinking cadre of immigration officers hamstrung by absurdist rules imposed by an administration bent on destroying the fabric of our immigration control system (even as they declare it "broken," as if their hands were clean) — staying hidden is an easy enough thing to do.
What it comes down to is this: Once the sadly mistaken principle of "economic ability" is applied to any alien in removal proceedings, it will be applied to all of them, at least within the jurisdiction of whatever court indulges in judicial activism to achieve that result.
In the growing chasm of cracks between our criminal justice system and our immigration enforcement system, how many more victims will that create?