Costly bonds: For undocumented immigrants, freedom depends on a judge’s subjectivity

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Every month, Fernando spends $700 to chase his part of the American dream. That’s half of what he earns managing a bodega in Los Angeles. The other half goes to support his family.

In 2016, gang violence forced him to leave El Salvador, along with his pregnant wife. They reached the United States, but immigration officers arrested them in Texas. Both he and his wife are undocumented. Fernando (not his real name) was released from custody after paying a $12,000 immigration bond with money he borrowed from various relatives. It was the only solution that would allow him his freedom while working and navigating the deportation process.

The financial burden the loan payments cause his family is significant, especially since they are not Fernando’s only debt. He also paid $6,000 to a “coyote” to smuggle him and his wife across the border, and he still needs $5,000 for an attorney to process an asylum request. In total, he owes $23,000.

To tackle his debt, Fernando took a second job working at a snack-making plant. He works from 4 a.m. to 10 p.m., seven days a week. “We’re practically enslaved,” he said.

Fernando’s case is one among thousands of migrants who arrive undocumented each year to the United States, only to be detained by immigration authorities. For many, freedom is a question of luck, as the likelihood of being released on an immigration bond depends on the court where they are sent and the judge that hears the case. These same factors determine bond amounts.

In the U.S. immigration system, courts lack the parameters to guide judges on bond rulings, such as a person’s ability to pay or other personal circumstances. Bond amounts depend on a judge’s subjectivity, which often is influenced by personal bias or ideological leanings. In some cases, this includes xenophobia and racism.

An analysis conducted by Univision Data of 8,000 immigration bonds processed from January 2016 to March 2017 in four cities with large immigrant populations – Miami, San Francisco, Chicago and Los Angeles – revealed that these two factors, the judges and the courts, carry significant weight in determining who will face immigration proceedings from behind bars and who will not.

To better understand the impact bonds have on the lives of Latino immigrants, and the efforts that families must make to pay them, Univision asked for help from our readers.

That’s how we learned of Ernesto Moreno, a young Honduran who fled his country after being harassed by security forces. Ernesto was undocumented when he came to the U.S. and was arrested by immigration officers. But he was able to bond out of detention by paying $3,000, thanks to online donations raised by an organization called Casa Mariposa, in Tucson, Arizona.

Following are some of the 168 responses we received, shared by phone by those who experienced the U.S. immigration bond system firsthand (audios in spanish).

The data we analyzed suggest that the court where an undocumented person is brought for a hearing after being arrested influences whether a bond amount is high or low. The difference between average bond amounts at different locations is noteworthy.

For example, while the average bond at an immigration detention center in Chicago is $5,376, bonds at a Los Angeles court were set at $17,272 on three separate occasions during the period of study, according to an analysis by Univision.

In other words, a bond for an undocumented person brought before an immigration court in Los Angeles could be three times more expensive than at a court in Chicago.

Another factor contributing to this arbitrariness are the judges themselves. Univision Data analyzed the rulings of 22 judges. Of these, Chicago Judge Carlos Cuevas set the lowest bonds, with an average of $4,800. Meanwhile, Lorraine Muñoz, a judge in Los Angeles who retired last year, topped the list with an average of $28,332 – nearly seven times higher than the average bond set by Judge Cuevas.

Judicial philosophy or bias?

Immigration bonds allow undocumented people who are arrested to confront their deportation proceedings from outside a detention center, after the funds are deposited in a government account. This serves as a guarantee that a person will show up for hearings, because funds are forfeited to the government if that person disappears.

The money deposited for a bond can be recovered about a year after a person is deported or obtains legal status in the U.S.

Emily Ryo, a professor of law and sociology at the University of Southern California and a pioneer in researching the immigration bond system in the U.S., called the substantial differences in bond amounts “alarming” and “disconcerting.”

“We would expect some degree of uniformity and consistency among judges and courts if the premise is that the allocation of cases among judges isn’t skewed,” Ryo said.

But Los Angeles immigration judge Ashley Tabaddor, president of the National Association of Immigration Judges, believes the outcomes are normal. She attributes the gaps to the ideological differences of judges and the amount of discretion the law permits.

“The judges come to each case with a combination of experience and philosophy. That’s the human factor. You’re going to use the facts slightly differently to reach a decision,” Ryo said.

The problem is when that philosophy becomes bias, which could determine the fate of thousands of people. Authorities are aware of this issue. In August 2016, more than 250 immigration judges received training to combat judicial bias. The same year, the Justice Department announced it would train more than 28,000 employees to “promote equality and eliminate bias” from the workplace.

In 2006, then U.S. Attorney General Alberto Gonzales announced that immigration judges would be required to undergo immigration law exams and performance evaluations following a report by the TRAC Immigration Project revealing large disparities in asylum approval rates, which suggested substantial bias in court rulings.

Last year alone, the Justice Department received 294 complaints against immigration judges. In each of the last five years, nearly 30% of immigration judges have had complaints filed against them. Of those, nearly a third were complaints alleging bias.

Tabaddor, the judges’ association president, prefers to view the issue in terms of diversity, rather than bias. “The philosophy is what’s being challenged here. If someone isn’t progressive, then you have a disagreement with their philosophy. The response to that is you want to have diversity in the court,” she said.

The Los Angeles court where Tabaddor works is among those with the highest immigration bond amounts. It has the second highest percentage of bond denials among those analyzed.

Tabaddor believes that imposing additional parameters on judges would be detrimental to undocumented immigrants. A law passed by Congress in 1995 – when various immigration judges were accused of being too lenient – limited the ability to grant bail to immigrants with some criminal convictions, resulting in more immigrants remaining imprisoned, she said.

The law was declared unconstitutional by various courts and currently is under review by the Supreme Court.

“Be careful what you wish for,” Tabaddor said. “The consistency you’re looking for could result in more immigrants in custody for longer periods, without considering the specifics of each case,” she told Univision Noticias.

Emily Ryo believes that a lack of feedback about daily decisions judges make is one of the problems.

“The government lacks the collection of data to share with judges so that they can see how appropriate their decisions were,” she said.

Tabaddor confirmed to Univision that judges don’t receive information about the impact of their decisions on those who pass through their courtrooms.

Economic impact

The amount of discretion that judges have in ruling on immigration bonds has raised concerns due to the impact an excessive bond has on the lives of immigrants and their families (audios in spanish):

This population group is considerably less financially stable than those who are born in the U.S. Figures from the Center for Immigration Studies show that each person from an immigrant household has an annual average income of $14,000, while those born in the U.S. have an average income of $20,000.

The $12,000 bond set for Fernando, the worker from El Salvador, is almost equal to the amount that undocumented people like him earn in an entire year.

To better understand the impact of immigration bonds on the lives of Latino immigrants, and the efforts that families make to pay them, Univision asked our readers to share their stories. Following is a sampling of 168 responses we received, told by those who had to come up with a way to pay for their freedom.

Despite the impact that bonds have on the lives of undocumented people, the law does not require judges to take income into account when ruling. Among the factors that judges do have to consider when ruling on bonds are whether a person is dangerous, whether they have a criminal record and the likelihood that they’ll flee.

Ignoring someone’s personal income when making these decisions is a serious problem. Even a relatively low bond amount could leave them locked up for long periods of time.

César Matías, a Honduran barber who lives in Los Angeles, received a $3,000 bond in 2012. That is less than the city’s average of $8,500, according to the sample we analyzed. Nevertheless, Matías couldn’t pay it and remained in prison for four years, despite not being a threat or a flight risk, according to the government.

Last year, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of Matías alleging violation of due process based on the argument that no one should be imprisoned because they are poor. The ACLU sought to have judges consider a person’s ability to pay when setting immigration bond amounts.

“For these people, who almost always have limited incomes, setting a high bond amount is essentially the same as obligating them to confront the legal process from prison,” ACLU attorney Michael Kauffman said.

The lawsuit also included Xochitl Hernández, a Mexican grandmother who U.S. Immigration and Customs Enforcement agents arrested in Los Angeles in February 2016, accusing her of belonging to a gang. A judge set Hernández’s bond at $60,000, which she understandably was unable to pay. As a result, Hernández spent more than six months in prison until another judge lowered her bond to $5,000.

In November 2016, a federal district court ruled in favor of the plaintiffs in the case and ordered immigration judges in California to consider people’s income when ruling on bonds. But California is the only state where judges currently are forced to do so.

The courts where immigration cases are heard also play a key role in the percentage of bond requests that are denied.

At a Chicago immigration court, where many undocumented people who have committed a crime are taken, judges deny bonds in four out of every 100 requests. But in Broward County, Florida, where immigrants with no criminal record are taken, judges reject bond requests in nearly half of the cases. Although bond requests by those with criminal records are more likely to be rejected, the number or rejections in Chicago is 10 times lower than in Broward.

Opposing perspective

Judge Tabaddor said that the conclusions we reached based on our analysis are “incorrect.” She said the same about statistics from the TRAC Immigration Project, the first organization to denounce the subjectivity of rulings by immigration judges in asylum cases, another issue reported by Univision Data.

Tabaddor insists that judges’ rulings aren’t comparable. She said that differences in the distribution of cases among judges could explain the contrasts, as well as variations in jurisprudence applied by each court.

“Some places could have a high level of criminality while others have average people. I don’t think you can extrapolate what you are trying to extrapolate,” the judge said.

Tabaddor also said that some judges receive more cases involving undocumented people who commit crimes than others, which could partly explain the differences in rulings. A criminal record is one of the factors a judge can cite when denying bond or setting a high amount.

To test arguments like those put forth by Tabaddor, researcher Emily Ryo studied how cases are distributed among various immigration judges, based on information obtained from the Executive Office for Immigration Review (EOIR).

Her conclusions contradict one of Tabaddor’s claims: “Nothing in the response by the EOIR indicates that the assignment of cases depends on the characteristics of those cases or of the individuals,” Ryo said.

Meanwhile, the debate continues. For many, the difference between pursuing the American dream and ending up in bankruptcy depends on the luck of the draw.