March 09, 2017

ABA urges that ability to pay pre-trial bonds be considered in immigrant detention proceedings

CHICAGO, March 9, 2017 — The American Bar Association filed an amicus brief Wednesday, asking the U.S. Ninth Circuit Court of Appeals to uphold a lower court injunction that requires bond determinations to consider a noncitizen’s flight risk and ability to pay a bond.

The ABA brief argues that the current process that detains noncitizen immigrants found eligible for bond but unable to pay violates the Due Process Clause and Equal Protection guarantee of the Fifth Amendment.

Citing policy adopted by the ABA House of Delegates and the Association’s criminal justice standards, the brief said the U.S. Supreme Court “has made clear that pretrial detention in connection with removal proceedings deprives a noncitizen of the fundamental right to physical liberty” and as such should be protected similar to criminal and civil contempt contexts.

“Our nation’s bond system reflects a balance between the need to ensure that defendants appear for proceedings and the recognition that we cannot and should not detain people who do not pose a risk to the community and can be otherwise compelled to attend their hearings,” the ABA brief continued. “Setting uninformed bonds without considering noncitizens’ ability to pay is an arbitrary procedure untethered from legitimate law enforcement rationales. … This unfairly imposes an additional burden on indigent noncitizens already saddled with substantial disadvantages, and further imposes unnecessary and excessive costs on the United States.”

The ABA amicus brief in Xochtil Hernandez, et al., v. Jefferson B. Sessions, III can be found here.

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