A federal appeals court affirmed and expanded a prior ruling to grant immigrant detainees in the Ninth Circuit access to bond hearings every six months.

The Ninth Circuit encompasses much of the western United States. The ruling greatly expanded the territory of a prior decision in the Rodriguez case mandating bond hearings for those detained in  Southern California, where the lawsuit originated.

In an opinion [PDF] written by Judge Kim McLane Wardlaw, the government must bear the burden of proving an individual must be held in detention and consider alternatives to detention, such as electronic monitoring.

The court noted half of all migrants imprisoned in Southern California are held for one year, while 10% are locked up for two years. Judge Wardlaw wrote, “Civil immigration detainees are treated much like criminals serving time: They are typically housed in shared jail cells with no privacy and limited access to larger spaces or the outdoors.”

The U.S. government’s practice of detaining migrants, who posed no threat to the public safety, without first giving them a bond hearing is not only unconstitutional but also extremely expensive.

“In 2011, the government detained a record-breaking 429,000 immigrants at a price tag of $2 billion, even though most immigrants do not need to be locked up to ensure their appearance for court or protect the public from harm,” the ACLU writes. “In many cases, the basic due process of a bond hearing would have prevented months or years of such arbitrary detention and saved countless taxpayer dollars.”

The case of Byron Merida illustrates this troubling dynamic. Merida was a small business owner who, despite having lived in the U.S. for three decades, was placed in deportation proceedings following his conviction for a non-violent crime.

The ACLU states Merida was held without bond for nearly three and a half years as his case was pending. This included a successful appeal to the Ninth Circuit. When he finally received his hearing, he was ordered to be released on $2,500 bond.

By that point, the government had spent around $200,000 to needlessly incarcerate Merida.

“According to the government, immigration judges have ordered the release on bond of approximately two-thirds of the people given hearings under the lower court’s order, making clear that the vast majority of long-term detainees can be released without endangering public safety,” the ACLU wrote in April 2013.

The LA Times notes, “In a separate decision Wednesday, the New York-based 2nd Circuit Court of Appeals agreed with the Ninth Circuit that detained immigrants should be given bond hearings after six months.”

Brian Nam-Sonenstein

Brian Nam-Sonenstein

Publishing Editor at Shadowproof and columnist at Prison Protest.