Congressman José E. Serrano

Representing the 15th District of New York

Congressman Serrano Introduces Legislation to Reform DHS and DOJ Bail setting and Detention Processes

Sep 21, 2016
Press Release

Washington, DC – Today, Congressman José E. Serrano was joined by 28 Democratic members of Congress in introducing the Immigration Courts Bail Reform Act, legislation to reform the bail setting and detention processes at the Department of Homeland Security and the Department of Justice.

“Immigrants that pose no threat to U.S. security should not have to sit in detention facilities simply because they are too poor to pay bail. The current immigrant detention and bail setting system is not only unfair and inhumane, but it also results in millions in taxpayer money wasted every year holding in detention individuals that don’t belong behind bars. The Immigration Courts Bail Reform Act will reform the bail setting process to make our immigration system more fair and efficient.”

Increased attention is being given to the constitutional implications of incarcerating individuals solely based on their inability to pay a bond amount or fine as justice systems across the country address disparities and problems in the bail process. This legislation aims to hold the nation’s immigration system to the same standards as our criminal justice systems.

Currently, many immigrants –including some seeking asylum—are held in a detention facility for no reason other than they are too poor to pay the set bond amount. The process lacks basic safeguards to protect indigent immigrants who do not pose a danger to the community and who are not a flight risk.  Neither the Department of Homeland Security (DHS), which is in charge of the initial bail setting process, nor the Department of Justice (DOJ), which makes a custody redetermination in an immigration court setting at the immigrants’ request, have official policies to take into consideration an individuals’ financial ability to pay when setting a bond amount.

Furthermore, these policies result in a significant waste of financial resources by the federal government, which ends up paying for the detention of individuals who have no real need to be detained. The current process also potentially violates several provisions of the Constitution, including the 8th Amendment’s Excessive Bail Clause, and the Due Process Clause of the 5th Amendment.  All of these concerns are currently part of a class action lawsuit recently filed against both federal agencies by the American Civil Liberties Union.  

The Immigration Courts Bail Reform Act will create the necessary safeguards to ensure that our immigration system is more efficient, effective, and fair.  The legislation will:

  • Require DHS and DOJ to consider the financial ability to pay in setting any bond amount
  • Eliminate the minimum bond amount currently in statute 
  • Create a presumption that alternatives to detention are the preferred method of ensuring the appearance of an individual before an immigration judge  
  • Create procedural standards to guarantee prompt bond hearings and decisions

“The Department of Justice recently recognized in a federal court filing that it is unconstitutional to hold someone behind bars in our criminal justice system for no reason other than their poverty level. These same concerns should apply to our nation’s immigration courts.  This bill will ensure that the Department of Justice institutes reforms to address the serious problems that our nation’s indigent immigrants are facing in our detention system, and help ensure that fewer people are locked up while awaiting their immigration case,” added Serrano.

Congressman José E. Serrano has represented The Bronx in Congress since 1990.