New York Lawyer's Legal Updates

IJ Must Consider Immigrant’s Ability To Pay When Setting The Bond

Author: Immigration Attorney Alena Shautsova

An immigration bond is an amount an immigrant has to pay to be released from the immigration detention. The usual situation involving an immigration bond would unfold when asylum seekers I detained at the border and placed in detention pending credible fear interview. If an asylum seeker passes an interview, the government should either parole him/her into the US and release the person; or set an amount of bond to be paid; or will leave the question in the air. The bond is a security that an asylum seeker will come back to immigration court for future hearings. It will be returned to the person who is posting it only when the asylum seekers legalizes in the US.

The amount of the bond is the subject of the present article. Under the law, the bond can be set anywhere between $1500 to $25000 (typically). Even though online there are reports of very high bonds ($30K, 40$ and even $100k) those are atypical situations, and if I had to guess, I would say that some criminal charges were in the picture when those bonds were set.

So, when the court places a $25000 bond on a person whose family is making that much per year, it is obvious, that the immigrant will never be bonded out: the family will simply have no money to pay. This was recognized by the court of Southern District of New York in case of Celestin v. Decker, 17 Civ. 2419 (S.D.N.Y. June 14, 20 17):

setting bond in an amount a person cannot pay would essentially be a denial of bond," and "[d]enial of bond not due to evidence that the immigrant poses a risk of flight or a risk of danger to the community contravenes the mandates and the logic of Lora . ..."

As such, the Court of Western District of New York held that immigration judges have to consider immigrants’ ability to pay bond when setting the amount of bond. See Abdi, et al v. Nielsen, 2/9/18.

This was the law in the Western District of New York, at least before February 27, 2018, when the US Supreme Court stated that immigrants detained under Section 1226(b) do not have a right to bond hearings in case of prolonged detention. The US Supreme Court decision did not address the issue of the excessive bond, and there remains hope that at least in NY immigrants have a right to challenge excessive bonds in courts.

When applying for a bond, it is important to make an argument that the bond should be reasonable, as well as an argument that alternatives to bond should be considered.

15 March 2018
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