The Department of Homeland Security (DHS) is revising its regulations governing service of bond notifications, allowing U.S. Immigration and Customs Enforcement (ICE) to serve notices, decisions, or other documents electronically. Current regulations authorize ICE to serve documents in-person or by certified, registered, or first-class mail, making the process less efficient than necessary. This is a welcome change to ICE officials managing the bonds process, and one that was initiated in 2019 under the Trump administration. The regulation is online and public comment is open until September 7, 2023.
An immigration bond can take various forms, but the primary use of a bond is on aliens released from government custody while their immigration cases are pending. Here’s how ICE explains it:
An immigration bond is a formal written guarantee by an obligor (an individual, entity, or surety company) posted as security for the amount noted on the face of the immigration bond. The bond assures ICE that the obligor will perform the obligations for the type of bond indicated on the Immigration Bond, Form I–352. The posting of immigration bonds can occur with the deposit of cash in the full principal amount of the bond, known as “cash bonds;” or where a surety company and its agent agree to pay the amount of the bond if there is a substantial violation of the bond's terms and conditions, known as a “surety bond.” Out of a total 33,237 approved immigration bonds that ICE issued in 2020, 25,751 (78 percent) were cash bonds and 7,486 (22 percent) were surety bonds. If the obligor performs the conditions set forth in the bond, the bond will be cancelled. If the obligor substantially violates the conditions of the bond, the bond will be considered breached (a breached bond). See 8 CFR 103.6(e).
Cash bonds can be posted by an individual or an entity (such as a law firm), whereas surety bonds are underwritten by a company certified to issue bonds on behalf of the federal government; the Treasury Department maintains a list of approved surety companies. In practice, this means that most ICE bonds — the 78 percent that are cash bonds — are posted by arguably less reputable sources with a range of trustworthiness, from immigration law firms, to family members of illegal aliens, to activist groups like the Minnesota Freedom Fund.
The entire assumption behind a bond is that the obligor who has posted the bond wants the money back and will ensure the alien appears at an ICE field office when the government requests an appearance, out of fear of breaching the bond and not being able to get the cash back. To trigger an obligor’s performance, ICE issues a demand notice on Form I–340, Notice To Obligor To Deliver Alien.
There are a number of notices, forms, and paperwork that may go back and forth during this process, from a delivery demand, to a breach notice, to a cancelation notice, and others. This regulation permits ICE to issue bond-related notifications to obligors electronically when they enroll in ICE’s electronic bond system, known as the Electronic Bonds Online System (eBONDS) and the Cash Electronic Bonds Online System (CeBONDS), the latter of which is under development. DHS argues that this change “will improve security and transparency in the bond process and facilitate quicker information and communication to both the public and the government with minimal burden”.
DHS explains that current regulations allow “individuals to post bonds online, but ICE is not permitted to serve notices, decisions, or other documents electronically”. The regulation will address this odd situation.
While this is an efficiency expected in the modern age, where many transactions occur electronically, there should be some concern from DHS that too remote of a process may reduce the effectiveness of law enforcement. The regulation explains that CeBONDS is “a system that allows obligors to conveniently post ICE immigration cash bonds online without visiting an ICE office in-person.” Sometimes an in-person visit is important and ICE officers should not allow efficiencies to limit their opportunities to properly evaluate a bond and an obligor, face to face.
In sum, ICE officials running the bonds process view this as a benefit because it will reduce costs on ICE by not requiring printing or postal fees and it will reduce time spent on mailing documents. Officials also note that there is potentially more reliability with electronic processing because paper mail doesn’t always reach its destination and obligors often refuse to sign for certified mail; some also claim that they never received any documents. As noted in the regulation, “A random sample of 100 delivery cash bonds that were declared as being breached during calendar years 2017–2019 indicates that approximately 28 percent of demand notices sent by certified mail to the obligor’s address of record were returned as undeliverable or unclaimed.”
Ultimately, officers believe this electronic process will create more efficiency for both the agency and the obligor. But for our nation’s immigration system to operate property, DHS will need to create consequences for aliens and obligors who abuse the bonds system. For many absconders and their supporting obligor, losing a cash bond is likely anticipated at the outset. DHS must make every effort to cancel pending immigration cases and locate and arrest all involved in this type of lawlessness. Congress should also create greater consequences for fraud in the bonds process.