Poverty Is Not a Crime, so Why Are People Being Trapped in Immigration Detention for Being Poor?

You shouldn’t be imprisoned for being poor. But that’s what’s happening to thousands of immigrants across the country who are unable to afford to pay a bond to be released from immigration detention. People accused of immigration violations — who have no criminal record whatsoever — can be assigned exorbitantly high bail that leaves them trapped in detention for years.

Today, members of Congress introduced legislation to prevent immigration detainees from being overcharged for bail. The Immigration Courts Bail Reform Act, co-sponsored by Reps. Jose Serrano (D-N.Y.), Luis Gutierrez (D-Ill.), Zoe Lofgren (D-Calif.), John Conyers (D-Mich.), and 25 other lawmakers, is critical to ensure that no immigrant — whether a legal resident, asylum seeker, or undocumented person — is imprisoned solely because he or she can’t afford to get out.

Bail is not supposed to keep a defendant in jail — but to allow the defendant to leave. The American Bar Association says that judges should use bail to “ensure that defendants will appear for trial and all pretrial hearings for which they must be present.”

In the federal criminal justice system, judges consider the defendant’s financial circumstances when they set bail to ensure that the amount is reasonable. Depending on the case, they can also use alternative conditions of supervision, such as check-ins and travel restrictions, to help guarantee that a person will show up for court.

But outside of the criminal system, immigrants in detention centers are not afforded these same protections.

Take, for example, Cesar Matias. He was arrested by immigration agents in 2012. Matias argued that as a gay man, returning to Honduras — a place of widespread discrimination and deadly violence against LGBT people — could put him at tremendous risk.

The judge in Matias’ case found that he neither posed a risk to public safety or national security nor was a flight risk requiring detention, so the judge granted Matias’ release on a $3,000 bond. Yet Matias went on to spend four years behind bars while his asylum case was pending simply because he could not afford to bail.

Imprisoning people because they are poor is a gross violation of due process and equal protection under the law. In fact, even the Justice Department has argued — on multiple occasions — that jailing someone in this way is unconstitutional. And a growing number of federal courts have agreed.

The ACLU filed a lawsuit on behalf of Matias — and other immigrants like him detained in the Los Angeles area — asserting that judges must take the financial circumstances of immigrants into account when setting bail. Now Congress is offering a political solution to the problem.

Congress should swiftly pass this legislation. Matias has already lost four long years of his life in jail waiting for relief, but we can prevent others from suffering the same senseless loss. 

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Sitting in a detention center for four years is unreasonable. It is also unreasonable to assume an immigrant will return to an immigration proceeding when there is no incentive to do so. More so, it may be contrary to their personal interests and pursuits to do so. What is needed is an examination of the process to evaluating each person in a timely manner.

The stated objective of this lawsuit, to have judges consider a person's financial ability when considering bail, is already being done. Are we of the belief that immigration judges do not have the education, knowledge, and experience surrounding the detention issues to make fair decisions on bail? Are we of the belief that they are so inept that their decision should be dictated by legislation or political pressure? Should we legislate that they extract from their consideration the cost of locating individuals that do not return, or the potential harm of releasing an un-vetted person into our country – someone with no roots or assets, and no qualifications to thrive in a competitive labor market?

This article speaks of immigrants as if there was one classification. But there are two: legal and illegal. The legal immigrants, those that waited in line, were vetted, and found acceptable and welcomed into OUR country, are not being held in detention because they are poor. They are gifted an equal share in voice and constitutional protections. Their acceptance, I hope, is balanced against the needs of our country and to some degree charity.

The illegal immigrants, are those that bypassed the vetting process, are not given equal constitutional protections afforded to our citizens. They are by definition not citizens. The U.S. constitution protects the rights U.S. citizens. So that distinction should be made in the analysis of treatment.

But fairness, should be the goal of any process. The fact that an illegal immigrant does not have a pre-existing criminal record here is a ridiculous and dangerous basis for release with no bail or low bail. The concept of what is fair should not be disproportionately based on the belief and opinion of illegal immigrants, or of special interest groups, but primarily on the needs of our country and its citizens. That is what the immigration judges do, they provide a balanced approach.

A country, like any business or organization, must operate in a manner to perpetuate its mission and existence. If we cherish charity, they we must perpetuate the ability to be charitable. Our decision to accept immigrants should have some degree of charity, but generally should be based on the strategic needs of our country. We have labor needs, we have demographic needs to ensure a strong military, we have needs for skills – especially technical. Therefore, this country requires a proper vetting process that balances our needs with the immigration process, and do so in an efficient manner.

Some issues are ignored in this article, such as the desire of Islamic radicals seeking to enter our country to cause disruption and great harm; or a lack of ambition toward personal improvement and/or the desire of some to live an unproductive life off the labor of others and to perpetuate that life style. Ignoring these issues can damage the mission of this nation and make us vulnerable to greater exploitation, particularly by nations aggressively building their military while moving towards confrontation with the United States. Our country needs to act responsibly and thoughtfully in every aspect (trade, immigration, financial and monetary policy, healthcare) with the strategic needs of our country to remain safe and strong. We must consider our needs and what we can afford as this country’s financial debt has weaken us. Our weakness has emboldened China, Russia, North Korea, and Iran to challenge our strength. If we do not handle immigration (and all areas of government) with a focus on our strategic needs, opportunist countries will see to it that the concept of “rights” will become a moot point.

A Opsal

1st off, being jailed as an undocumented person means you are here illegally. These people should not be able to get out until they are deported. Secondly, bail is designed to allow some to leave, but also allows a judge to set it so as to not allow someone to leave. Three quarters of a million immigrants have moved in since 2012 under Obama's immigration policy allowing children who have been brought illegally into the country to stay. There has to be laws, and they must be followed.

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