Democrats to Garland, Mayorkas: Ease up on migrant detention bonds

Democratic lawmakers are calling on the Biden administration to change the way it enforces immigration bonds to make the system more equitable amid a skyrocketing immigration detainee population.

In a Monday letter to Attorney General Merrick Garland and Homeland Security Secretary Alejandro Mayorkas, Sens. Dick Durbin (D-Ill.) and Alejandro Padilla (D-Calif.) and Reps. Jerrold Nadler (D-N.Y.) and Pramila Jayapal (D-Wash.), said current immigration bond practices do not allow for adequate due process, "raising serious constitutional issues."

"Such detention has had disastrous effects on noncitizens and their families—plunging families into poverty and exacerbating medical or mental health conditions for detained individuals or their loved ones at home," wrote the lawmakers in the letter obtained by The Hill.

"We urge you to amend current immigration bond procedures to mitigate these concerns and improve access to due process in the immigration detention system."

The lawmakers, the top Democrats on the Judiciary committees and immigration subcommittees in both chambers, laid out four reforms that would improve due process in immigration detention.

They called for the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to flip the burden of proof when determining whether a foreign national needs to be detained while awaiting immigration proceedings.

Currently, noncitizen detainees have to prove they're not a danger or a flight risk, even if they're not accused of any crimes, unlike in criminal proceedings, where the government has the burden of proof to show an accused criminal merits detention.

The lawmakers also asked for a detainee's ability to pay to be considered when setting bonds.

"Immigration bonds can be hundreds of thousands of dollars, imposing huge costs that families are unable to afford. By contrast, the federal Bail Reform Act forbids the imposition of financial conditions which the defendant cannot meet," they wrote.

They also called for immigration detainees to be able to challenge Immigration and Customs Enforcement (ICE) determinations of mandatory detention.

Under current policy, ICE officers can tag a foreign national for mandatory detention without the possibility of appeal.

"​​For example, ICE may subject an individual to mandatory detention if there is 'a reason to believe' that the person has been involved in trafficking in controlled substances, even if the individual was never convicted of such a crime," wrote the lawmakers.

Finally, the lawmakers asked for periodic assessments of people in immigration detention, to ensure individuals are not subjected to unnecessarily long detention.

As of Sunday, according to official data reviewed by The Hill, there were 39,920 people in ICE detention centers, though the system is budgeted for a maximum population of 34,000.

That's a 13 percent increase from the last publicly reported figure of 35,289 ICE detainees in September. On a yearly basis, it's a 38 percent jump from the 28,829 average detainee population in October of 2022.

And though a broad majority of detainees are not convicted criminals or have pending criminal charges, most detainees are tagged for mandatory detention.

Officials with DOJ and DHS did not immediately return a request for comment.

ICE is tasked with long term detention of presumed immigration law violators, though a majority of detainees are transferred to ICE custody from Customs and Border Protection, which detains people at the border and ports of entry.

About 28,000 of the 39,920 detainees are in mandatory detention. Nearly 25,000 of those detainees were initially detained by CBP.

About 11,000 detainees were not in mandatory detention, 6,000 of whom were detained by ICE and 5,000 by CBP.

The average detention time for CBP-detained foreign nationals with no criminal background or charges was 34 days in September, while the average stay for similar individuals arrested by ICE was 15.7 days.

In fiscal 2023, ICE booked 267,265 people, removed 135,668 foreign nationals, and released 145,576, though only 17,344 of them were released on bond.