Trump’s ‘Zero Tolerance’ Immigration Policy Has an Antidote

Under the Trump administration, the number of people being held in ICE custody has reached record highs, with over 40,000 people now in detention centers across the country. With no end in sight for the Department of Justice’s “zero tolerance” immigration policy, under which even first-time border crossers are charged with federal misdemeanors, activists and immigrant advocates have been looking for ways to stem this rising tide and get people out of detention as quickly as possible.

“There’s been this push among community groups, lawyers, organizations and also just random groups of people who have been thinking about what they can do that’s practical to actually get people out, and then, to be able to amplify the effect of legal services,” said Benita Jain, an Oakland, California-based supervising attorney at the Immigrant Defense Project. In the days following President Trump’s election, Jain began working with other parents in California public schools to create the Immigrant Family Defense Fund, a bond fund for parents facing deportation.

Since Trump’s election, more than a dozen new bond funds that focus on people in immigration detention have emerged—with most of those already bailing people out of detention, and others still in the process of forming.

These bond funds not only free people currently detained by ICE, Jain explains, but give them a much better chance at eventually winning their immigration cases and being allowed to stay in the country permanently. Once out of detention, immigrants can situate themselves closer to legal assistance and social supports.

Immigrant bond funds have never been more needed: Arrests by ICE are up sharply in the past 18 months, and the backlog of cases in immigration courts has increased by almost a third under Trump. That means if immigrants want to fight their cases and try to stay in the country legally, they will typically wait months and possibly years for their days in court. Many are held in crowded private detention facilities that often lack substantive oversight, are home to incidents of sexual abuse, are devoid of quality healthcare, and, for the most part, are many miles from any legal assistance. Getting stuck in detention puts pressure on immigrants to give up their cases and agree to removal—unless, of course, they get bailed out.

But only 14 percent of immigrants in detention have legal representation, which is not guaranteed to them under the Constitution. “Having legal representation is associated with significantly higher odds of being granted bond,” said Emily Ryo, an associate professor of law and sociology at the University of Southern California Gould School of Law, who has extensively studied the impacts of bail in immigration proceedings. Yet those who are in detention facilities far from big cities often don’t have ready access to the lawyers they need. Ryo notes that there’s “a significant and robust association between being confined in a facility that is close to a dense population of immigration lawyers and shorter detention length.”

Prolonged detention can make it hard to build a case, Jain explained, another reason bail is so important. “If you’re detained, it’s much harder to get an attorney in many parts of the country, and even if you do have an attorney once you’re out, there’s so many things that make it easier for you to fight your case: You can collect documentation and evidence, a pay stub, get letters from families, friends, and community members,” Jain said, adding that each opportunity an immigrant has to prove the need for asylum or ties to a community makes a removal case that much more winnable.

Getting out on bail also allows immigrants to move to parts of the country where courts are less likely to deport them. For instance, over the past 18 years in Queens County, New York, almost half of immigrants facing removal have been granted some form of relief, such as asylum or cancellation of their removal proceedings. That’s in stark contrast to Cameron County, Texas, which had almost an identical amount of cases to Queens during that time, but where less than 5 percent of immigrants facing removal were granted relief.

Immigrant communities in the United States are often situated in cities with robust legal defense organizations, as well as protections for immigrants from targeting by law enforcement. Immigrants who are bonded out are able to search out these cities, and they stand a better chance at a favorable outcome. (It’s no coincidence that Queens has a foreign-born population of just under 50 percent.)

While lawyers greatly increase the chances of an immigrant being offered bond, actually paying that bond is a significant hurdle for immigrants. It is often set far above the reach of many immigrant families and can be as high as $20,000. Unlike other arrestees who can borrow a percentage of their bond from the corporate bail bond industry, immigrants often can’t because their bonds must be paid in full to secure release. (They get the money back only at the resolution of their cases, which can often take years.)

Unlike bond funds in the criminal justice system, which can refill their coffers after a client returns to court and bond is returned, immigrant bond funds often wait years until a case is resolved for that loan to be repaid. This raises the cost of running an immigrant bond fund tremendously, a problem compounded by the fact that bonds have begun to be set much higher under the Trump administration than previous amounts under Obama.

“When we pay a bond, we assume it’s paid and it’s not coming back. Some of the bonds have come back, but not all of them. We just put it out and assume, okay, we paid that and it sometimes takes like five or six years for the processes to play out regarding the bond, so we’re constantly just trying to replenish the fund,” said Jimmy Wells, an organizer with the Protection Network Action Fund (Pronet), an organization that provides financial support to immigrant rights groups in Tucson, Arizona, including in the form of bail bonds. Since its formation in 2012, the organization has paid out at least 11 bonds for immigrants in the area, according to Wells.  

“When we’re able to bond someone out, we can fight the battle on our terms,” Wells told The Appeal. “We can stretch the case out in order to give the person more time, we can get the community involved. I think it makes all the difference in terms of getting people reunited with their families.”

Donors have been responding to the call for help. Refugee and Immigrant Center for Education and Legal Services, or RAICES, a Texas-based advocacy group, raised more than $20 million in under a week for legal representation and bail for immigrants. But some advocates fear that once the attention being paid to family separation dies down, fundraising will slow down as well. Meanwhile, the costs of bailing out everyone arrested could rise substantially.

Jain hopes the bail funds will be able to meet the demand. “It’s really just over the past year and a half [that] bond funds for immigrants have been popping up around the country, and it’s only been the past couple of weeks that there’s been this actual national conversation about individuals giving their dollars specifically to get people out,” Jain said. “We need as much money as the government spends on deporting people—$10 billion dollars to do all of this, I’m sure could be put to good use.”