By Mallory Moench
Asylum-seeker Aboubacar Soumah won the right to a bond hearing and a chance to be released from immigration detention two months ago. But he is still behind bars in upstate New York because he can’t afford the $15,000 cash bond set by the immigration judge.
Soumah has only $59 to his name. With no family in the U.S. to help support him, his only way to raise funds is the $1 a day he earns by cleaning tables in Batavia Federal Detention Center where he is locked up.
The asylum-seeker, who fled persecution in Guinea, has been in detention since he arrived across the southern border and presented himself for asylum in July. A psychiatrist diagnosed him with depression and post-traumatic stress disorder, but he has no way to receive proper treatment until he’s released.
Lawyers from the New York Civil Liberties Union (NYCLU) sued the federal government last year for unlawfully denying parole and bond hearings to asylum-seekers in Batavia. They won the case in late November and a federal judge ordered the government to re-adjudicate parole or have their first bond hearing after being held in detention for more than six months.
Thanks to that ruling, nine asylum-seekers have been released on parole since then and another 17 received bond hearings. But the amounts set are often well beyond the ability of the asylum-seekers to pay: In eight cases, bond was set at $15,000; others range from $5,000 to $12,000.
Thirteen detainees have been able to make bail through crowdfunding from friends and family or loans from bail-bond companies. But Soumah is one of at least four detainees who can’t afford to pay at all.
In January, NYCLU filed a motion to challenge how the federal judge’s November ruling was being implemented – with bonds set so high that some asylum-seekers are still detained. NYCLU argued that immigration judges failed to consider whether asylum-seekers could pay the bond, and that detainees shouldn’t remain behind bars just because they’re poor.
“Most of these people have hardly a penny to their name when they fled persecution in their home countries and came to the U.S.," said NYCLU attorney Aadhithi Padmanabhan. "It’s going to be very difficult and in some cases impossible to collect thousands of dollars. There might as well be millions of dollars."
“They are being jailed because of their poverty," she said.
Detained immigrants usually have bond set by the Department of Homeland Security, but asylum-seekers are an exception. Instead, after six months in detention they can get bond hearings before judges in immigration court, which is overseen by the Department of Justice Executive Office for Immigration Review.
A spokesperson for the department said that these judges adjudicate bond on a case-by-case basis. They don’t grant bond if “the alien is a danger to the public or national security” and set an amount that is “required to compel the alien’s presence at future hearings.”
Immigration bond is usually higher than criminal bond and always has to be paid in cash. The law calls for bond to be set at a minimum of $1,500, but it’s often much more. The national average for immigration bonds tripled over the past two decades, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).
Civil rights groups have sued the federal government multiple times over detained immigrants’ right to win release on an affordable bond. A federal judge ruled in 2015 that immigrants held longer than six months in detention should receive a bond hearing, but it doesn’t always happen.
Andrea Sáenz, supervising immigration attorney at Brooklyn Defender Services, said she and other lawyers in New York City filed at least 50 petitions suing the government to give detained asylum-seekers bond hearings in 2017.
The judge should grant bond unless the government can prove they pose a danger to the community or may run away. Sarah Deri Oshiro, head immigration attorney at Bronx Defenders, explained that if the government can’t prove either condition with clear and convincing evidence but still denies bond, “the bond-seeker’s constitutional rights have been violated.”
But just getting bond doesn’t address whether someone can afford to pay it. Last year, the U.S. District Court for the Southern District of New York ruled that an immigration judge should have considered whether a Haitian asylum seeker could afford bond when setting the amount. Not all judges are required to follow this decision, but NYCLU attorneys argue that they should at Batavia.
“The extremely excessive bond amounts at Batavia not only keep people detained needlessly, but to the extent that they are able to obtain release, they do so at extreme personal cost to them and to their families,” said NYCLU attorney Paige Austin.
Mamadou is a 28-year-old asylum-seeker who prefers to be identified by his first name only because his asylum case is still pending. He was detained at Batavia for 14 months after fleeing ethnic and political persecution in Guinea.
“Sometimes I thought, one year in detention when all I ask for is protection, and I would cry and think about that,” Mamadou said. While in detention, he developed an acute stomach condition that doctors said required an operation, but he was too afraid to have it done because, he said, he didn’t want to die before he saw his family again.
After NYCLU’s successful lawsuit, Mamadou received a bond hearing on Dec. 29, 2017 – the same day as the hearing about his asylum case. He said he was excited but nervous. Some of his fellow detainees had their bonds set as high as $15,000 and Mamadou knew his friend helping him make the payment could never afford that amount.
With pleading from his volunteer attorney, the judge set Mamadou’s bond at $5,000. Mamadou was released from detention on Jan. 2.
“It’s unforgettable for me to have been freed,” Mamadou said. “My friends and family give me everything I need, they’re always giving me food and if I need money for anything. I can’t even eat all the food they’re giving to me. They say, I know you suffered, but now you’re home.”
Families and friends bear the brunt of paying thousands of dollars to get a loved one out of detention. They often turn to bail bond companies, even though many have been exposed for exploitative practices such as charging immigrants up to $400 a month to rent ankle trackers. Most attorneys warn immigrants against using these companies, but sometimes they’re the only options.
One detainee in Batavia decided to use a bail bond company to get out of detention. Austin said she understood his decision, but lamented that he’s now “in bondage”, as she put it – possibly for years before his asylum case is decided.
To avoid using these companies, community organizations try to raise bond funds. Jamila Hammami, director of the Queer Detainee Empowerment Project, estimates she’s raised $40,000 in bail for at least 10 immigrants since 2014.
The average amount was $7,500, although she remembered one gay man from Honduras whose bond was set at $15,000. Hammami said that if she’s not able to raise enough money through personal connections or online platforms, immigrants remain detained until they are granted asylum or deported.
But many asylum-seekers like Soumah, who fled persecution in their home countries, still lack community or family support in the U.S. Until the judge grants him relief, he will remain behind bars, too poor to be free.
Published on WNYC on February 7, 2018