The federal government sets unreasonable bonds for detained immigrants, including asylum seekers, by failing to consider immigrants' financial resources or ability to pay, according to a federal class-action lawsuit filed by the American Civil Liberties Union and the ACLU Foundation of Southern California (ACLU SoCal).

The lawsuit seeks to require the government to apply standards similar to those used in criminal cases when it sets bail bonds for immigrants. Currently, individuals awaiting trial on criminal charges are entitled to bail. In such cases, judges must consider the person's ties to the community, the seriousness of the crime and an individual’s financial circumstances when setting bail.

Indeed, the U.S. Department of Justice has recently argued in the criminal bail context that “[i]ncarcerating individuals solely because of their inability to pay for their release” is unconstitutional. A growing consensus of federal courts has come to the same conclusion.

The Department of Homeland Security and immigration judges, however, are not required to consider an immigrant's financial situation or resources when setting bond for individuals facing deportation or seeking asylum, and routinely do not do so. As a result, many immigrants are ordered release on bond but languish in immigration jails for years because they cannot afford it.

The lawsuit was filed in federal court by the ACLU SoCal, the ACLU's Immigrants’ Rights Project, and pro bono attorneys from Skadden, Arps, Slate, Meagher & Flom. 

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