Bail for All, Except Undocumented Immigrants 

A deportation proceeding is civil, not criminal, and for decades federal judges have allowed the government to seek deportation while permitting release on bail through the posting of a bond. After all, most detainees have never committed a criminal offense; they are grandmothers who have lived here since they were three years old. Some have valid asylum claims, some have entered the country legally, and others may be American citizens who were caught up in the system. 

Aside from being Agent 007’s surname, the word “bond” has, of course, many meanings. To a lawyer, a bond is the obligation of a solvent third-party guaranteeing the obligation of another who wishes to avoid an unwanted outcome, at least temporarily. For example, if one loses at trial and a judgment is entered, the defendant’s assets are subject to seizure pending appeal unless he or she posts a supersedeas bond, which grants a stay of execution until the appellate court acts. In the criminal context, a bond is a useful alternative to incarceration that ensures the defendant will appear in court when required. 

The Eighth Amendment says it in a sentence: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This right to bail is a bulwark of our constitutional commitment to fundamental human rights. 

At arraignment, if someone is charged with a crime, the court will consider the prosecutor’s representations about the strength of the evidence against the defendant, the defendant’s criminal history, and the defendant’s roots in the community. Assessing whether the defendant is a flight risk, the court will, in most cases, accept bail to secure his or her appearance. If he or she posts the requisite bond, the defendant will then be released to the community pending trial. 

That has been the practice of federal judges (and every television police procedural) until now. Two judges from the ultra-conservative United States Court of Appeals for the Fifth Circuit covering Texas, Mississippi, and Louisiana, just issued a stunning ruling, binding on lower courts only in those three states, that, if allowed to stand, could result in the indefinite mandatory detention of millions of migrants in inhumane, overcrowded facilities.  

Even worse, these indefinite detentions are in civil, not criminal proceedings. It’s as if we’re jailing people for failing to pay their American Express bill or their dentist. America routinely imprisoned people for debt during the Colonial Era and early republic, but the practice was largely abolished by states in the 1830s and 1840s and prohibited by federal law.  

Debtors’ prison is a staple of Victorian literature. Charles Dickens’s father did time in debtor’s prison to the everlasting shame and humiliation of his son. Great Britain abolished the practice in 1869. Debtor’s prison was a recurring theme in Dickens’s novels, and one has only to peruse David Copperfield, The Pickwick Papers, or Little Dorrit to read of the inhumane conditions of the English debtor’s prison.  

In America today, the land of the free, migrants face extended confinement in abhorrent detention facilities that often fail to meet the standards of America’s prisons. 

Last year, Donald Trump’s administration uprooted a roughly 30-year bipartisan consensus on the interpretation and interaction of two sections of the 1996 amendment to the Immigration and Nationality Act. This sounds like something in the legal weeds, but Trump’s novel interpretation is what led to the troubles in California, Oregon, Illinois, and Minnesota. The effect of the change has sharply increased immigrant detentions on a scale unseen since World War II. 

The first section, 8 U.S.C. Section 1225, provides that, “In the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” 

An “applicant for admission” under this section is broadly defined as “An alien present in the United States who has not been admitted or who arrives in the United States.” By this definition, every undocumented alien in America would be an “applicant for admission.” 

But Section 1225 does not provide for posting a bond. Without a bond available, you’re stuck in detention until your case, however meritorious, is complete, and however long that takes. And if you are arrested in Texas, Mississippi, or Louisiana, even if you recently moved there, good luck filing a habeas corpus petition and getting it accepted. 

But the statute doesn’t require detention of every “applicant for admission.” It specifies only that an “alien seeking admission” shall be detained. So, what is the difference between an “applicant for admission” and an “alien seeking admission”? Is there one? Or are they synonymous? Trump claims without support that they are one and the same. 

The second provision in question, 8 U.S.C. Section 1226, sheds some light. It says, “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” This statute, however, permits the attorney general to release the “alien” on a “bond of at least $1,500,” provided, generally, that they are not criminals or terrorists or otherwise guilty of bad stuff. 

How do you harmonize the two statutes? When is an alien required to be detained, and when is a bond acceptable? 

Section 1225 applies to people who have crossed the border and are seeking to enter the country. Section 1226 applies to aliens who are already here. The short of it is, if you’re crossing the border, you’re not eligible for a bond because you are likely to be kicked out in short order. If you’re already here, then you are eligible for a bond because your case may take longer. 

The reason for the different treatment is found in the phrase “alien seeking admission.” The Supreme Court described it succinctly in Jennings v. Rodriguez, a 2018 case: “U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2). It also authorizes the government to detain certain aliens already in the country, pending the outcome of removal proceedings under §§1226(a) and (c).” 

This distinction has its own logic. Migrants entering the country may face expedited removal, and it hardly makes sense to release someone who is set to be deported in days. 

But once you’re in the country, have been here for years, perhaps hold a job or are raising a family of citizen children with no record of criminal activity, the barbarity of prolonged detention is obvious—especially since the removal proceeding itself isn’t criminal. 

That’s why Republican and Democratic presidents, including Trump, until he returned to the Oval Office in January, have adopted this interpretation of the law until now. District Courts have largely rejected the Trump argument. Politico did the math. “At least 360 judges [or 94 percent] rejected the expanded detention strategy—in more than 3,000 cases—while just 27 backed it in about 130 cases.” 

But now a divided Fifth Circuit panel has adopted the minority view. Judges Edith Jones and Kyle Duncan, both Republican appointees, blessed Trump’s revised reasoning and would deny bond even for law-abiding immigrants who’ve been living and working in the U.S. for years. 

CBS News reported last week that the Department of Homeland Security’s own documents show that fewer than 14 percent of the nearly 400,000 immigrants arrested in the first year of Trump 2.0 had either convictions or charges for violent crimes, with fewer than 2 percent either charged with or convicted of homicide or sexual assault. 

The Fifth Circuit interprets Section 1226—the section that permits bond—much more narrowly, applying to a much smaller slice of the immigrant population. If upheld, then get ready for mandatory detention of immigrants on a grand scale. 

Judge Dana Douglas, tapped by Joe Biden for the Fifth Circuit and the third member of the panel, dissented. The Congress that passed the relevant sections, she wrote, “would be surprised to learn it had also required the detention without bond of two million people.” 

That’s roughly the number of undocumented migrants living in the U.S. when the amendments were passed in 1996. Now the number is much larger. The sheer size and scope of the potential detentions boggle the mind. 

The administration, however, seems eager to detain as many people as it can. ICE is spending some $38 billion to purchase “mega warehouses” to be used as detention centers, potentially holding thousands more people than the largest federal prisons in the United States. 

The conditions for detained immigrants are substandard. The American Civil Liberties Union wrote that detained immigrants at a camp at Fort Bliss, Texas, “are held for weeks at a time with no access to the outdoors in cramped, squalid soft-sided tents with 72 people per unit, where toilets and showers flood eating areas with raw sewage.” 

An Irish citizen, Seamus Culleton, who had been living in the United States for more than 15 years, had a valid work permit and was applying for a Green Card. According to The Irish Times, he was sent to an El Paso, Texas, facility, and says it’s “like a concentration camp, absolute hell.” 

Culleton said that “he has been locked in the same large, cold and damp room for four and a half months with more than 70 men” and that “he has been allowed outside for air and exercise fewer than a dozen times in nearly five months.” 

Last year, Americans for Immigrant Justice, Human Rights Watch, and Sanctuary of the South released a report on conditions in three Florida detention facilities, claiming that immigrants are subject to “conditions that flagrantly violate international human rights standards and the United States government’s own immigration detention standards.” 

A photo from an ICE detention facility in Baltimore showed extreme overcrowding, with detainees lying side-by-side, covered only by foil blankets. A whistle-blower who worked at the facility said he “saw people lying in feces. People throwing up, people lying in urine.” 

These dreadful, abusive conditions at ICE facilities across the country will get worse if the Trump administration gets its wish to jam still more people sardine-like into an already packed can—leaving them without hope of release until a backlogged immigration court can adjudicate their case. 

The administration is egregiously violating the Eighth Amendment. Criminals who aren’t a flight risk and who pose no danger to their communities are admitted to bail pending trial. But law-abiding, undocumented immigrants, including immigrant families with young children who may be natural-born citizens, are tossed into camps for sport until their cases are complete. 

People who overstay their visas aren’t guilty of a crime, since their original entry is lawful. As for immigrants who enter illegally and whose first offense is a misdemeanor, when did we start pre-trial imprisonment for misdemeanors? Is this who we are? 

Mass detention and brutal mistreatment are surely meant as a deterrent to anyone in Mexicali, Managua, or Manchester looking to come here illegally. But that’s not the message. The signal is this: If you’re in the United States without documentation, even if you entered legally, even if you’re awaiting an asylum hearing, even if you’ve been here for years working, paying taxes, and breaking no law, you are subject to indefinite incarceration, sans bail.  

Presidents of both parties have deported millions of undocumented immigrants without violating human rights. But not Trump. His administration is sprouting a series of detention facilities that smack of America’s Japanese internment and the pre-death camp conditions of Hitler’s first efforts at concentration camps. Where’s the due process? 

The Trump administration got what it wanted from the Fifth Circuit. If Chief Justice John Roberts wants another shot at fulfilling his 2005 confirmation hearing promise of leading a humble court that only calls balls and strikes, rather than being a radical gang legislating from the bench, he’ll cobble together a majority that reverses the Trump-Fifth Circuit madness.  

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