By Bob Egelko
Immigrants who are being held while seeking the right to remain in the United States, and who would pose no threat if released, are entitled to have bail set in an amount that considers how much they can afford to pay and whether they can be safely monitored without bail, a federal appeals court ruled Monday.
The Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal judge's order that applied only to immigration courts in California's Central District, which covers seven counties, including Los Angeles, and includes nearly half the state's population. But a lawyer for immigrants in the case said Monday's ruling set standards for the entire circuit, which includes California and eight other Western states.
"Hundreds of detainees are being locked up every day in detention centers across the Ninth Circuit merely because they lack resources to pay a bond," said Michael Kaufman, an American Civil Liberties Union attorney. "It's our expectation that the government will follow the law that the Ninth Circuit laid down."
Government lawyers, under President Barack Obama and the Trump administration, argued that bail-setting in immigration cases was a discretionary decision not covered by the constitutional standards for criminal cases, and that taking detainees' finances into account would be time-consuming and expensive.
The administration could seek a rehearing from the full appeals court or appeal to the U.S. Supreme Court. In the meantime, the lower-court order requiring bail hearings, which had been suspended during the government's appeal, will take effect.
On Tuesday, the nation's high court will hear arguments in the Justice Department's appeal of another Ninth Circuit ruling, which entitled immigrants in government custody to a hearing every six months over whether they were eligible for release on bond.
The latest ruling came in a class-action suit by immigrants who entered the United States without authorization, or overstayed their visas, and are being held while they seek political asylum or legal status based on considerations such as hardship to U.S. family members.
In each of their cases, government hearing officers or immigration courts have found that they would pose no risk of violence or of fleeing if released, but set their bail without considering what they or their families could afford.
One plaintiff, a gay man who said he fled Honduras to escape persecution, was held for more than four years before a community organization raised $3,000 to pay his bond, the appeals court said. Lawyers reported the case of another detainee who had to miss the funeral of her mother, who had been murdered, because she could not pay a $9,000 bond.
Under the Constitution, "no person may be imprisoned merely on account of his poverty," Judge Stephen Reinhardt said in the ruling. He said the government has no reason to detain "individuals who have been determined not to be a danger to the community and whose appearance at future immigration proceedings can be reasonably ensured by a lesser bond or alternative conditions."
The court ordered the government to take financial conditions into account in future cases and for immigrants who are now in custody. One member of the three-judge panel, Ferdinand Fernandez, said in a partial dissent that the ruling should apply only to future cases.
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