Immigrant detainees denied bond hearings under new ruling

For immigrants detained by U.S. Immigration and Customs Enforcement, the legal option of seeking a bond hearing used to be a routine course of action.

There were no guarantees, but an immigration judge had the discretion to decide if a person who unlawfully entered the country could be granted bond if they hadn’t been convicted of serious crimes and weren’t considered a danger to the community or a flight risk.

That changed Sept. 5, when the federal Board of Immigration Appeals upheld a Trump administration policy, announced in July, that judges could not release people on bond who had unlawfully entered the U.S. and were detained in ICE custody.

Indiana immigration attorneys say that ruling, which is already being challenged in federal court, has added another substantial hurdle to the numerous challenges they already face in representing clients in immigration cases.

Katie Rosenberger, an attorney with Indianapolis-based Villarrubia & Rosenberger, P.C., said in the immigration cases where she’s sought bond for clients, she already was seeing immigration judges denying bond requests prior to the Sept. 5 ruling.

Rosenberger said the reasons cited for most of the denials were either the individual was deemed a flight risk or a danger to the community. Those reasons were given even for immigrants who had no criminal history, she added.

Rosenberger said it’s challenging to do case preparation and engage with clients when they are detained. Part of that difficulty stems from clients being sent to detention facilities out of state, far from where they were residing.

She’s had clients transferred to holding facilities as far away as Louisiana. The explanations for any out-of-state transfers—if an explanation is given—vary from case to case.

“Sometimes officers will tell us bed space. Sometimes officers will tell us they can’t disclose that for security reasons,” Rosenberger said, adding that Kentucky and Tennessee are two states where immigrant detainees are often transferred.

Emma Mahern, an attorney with Munoz Legal LLC in Indianapolis, said her office is representing a lot of ICE detainees and has witnessed the changing policy on bond hearings since July.

On July 8, Acting ICE Director Todd Lyons issued interim guidance to all ICE employees explaining that the DHS “has revisited its legal position on detention and release authorities” and announcing “[e]ffective immediately, it is the position of DHS that such aliens are subject to detention . . . and may not be released from ICE custody except by INA § 212(d)(5) parole . . . These aliens are also ineligible for a custody redetermination hearing (‘bond hearing’) before an immigration judge.”

Mahern said she has had several conversations with discouraged clients in the last few weeks where she’s told them they had good cases but that they also may have to wait for months in detention while they wait on an outcome.

“Sitting in jail for half a year is too much for some people,” Mahern said.

Some opt to be deported rather than wait on an unknown resolution to their situation.

Difficulties in preparing cases

Syracuse University’s Transactional Records Access Clearinghouse lists four Indiana-based detention facilities that are housing ICE detainees: Clay County Justice Center, Clark County Jail, Clinton County Jail and Marion County Jail.

As of Sept. 2, the average daily ICE detainee population for those sites totaled 350.

TRAC reported that, nationwide, Immigration and Customs Enforcement held 58,766 people in ICE detention according to data current as of Sept. 7.

Of those detained, 41,589—or 70.8% held in ICE detention—had no criminal conviction, with many of those convicted having committed only minor offenses, including traffic violations.

Erin Warrner, an immigration attorney with the Law Office of Jesse K. Sanchez in Indianapolis, said her firm has handled a few cases where it represented ICE detainees.

Prior to January, people who were stopped for minor traffic violations were granted a bond, Warrner said.

Even after the beginning of the year, clients could still generally get a bond, even it was higher than previous years, Warrner said.

Most jails that house ICE detainees have Web-based and phone-based ways of allowing for communication between attorneys and clients, Warner said, but stressed that it’s more difficult to speak with clients when they’re detained as opposed to being free on bond.

Some clients require interpreters, which can be a challenge logistically if the interpreter is not in the same room as the client.

Warrner said there have been times when she’s done video calls with clients where they’re seated in a kiosk with three or four inmates located near them, a situation that raises privacy concerns.

“It’s just not an ideal setting to meet with an attorney,” Warrner said.

The Indianapolis attorney said a lot of people detained in Indiana by ICE get housed at Clay County’s jail or get moved to jails in Kentucky or Michigan.

She said it can be a lengthy process to figure out where a client is located, as they are moved frequently.

Will ruling stand?

In the critical case in which the federal appellate board upheld bond denials, Jonathan Javier Yajure Hurtado crossed the border into the United States without inspection in November 2022 near El Paso, Texas.

United States Citizenship and Immigration Services granted Hurtado, a Venezuelan national, temporary protected status in 2024,

But that status expired on April 2. Hurtado was apprehended by immigration officials, and on April 8 the Department of Homeland Security issued him a notice to appear.

Hurtado requested a bond hearing before an immigration judge. At the hearing, the judge determined he had no jurisdiction to set bond under the facts of Hurtado’s case.

Alternatively, the immigration judge stated he would have denied bond because Hurtado was a flight risk. Hurtado appealed the ruling to the federal board.

The federal appeals panel wrote that “just as Immigration Judges have no authority to redetermine the custody of arriving aliens who present themselves at a port of entry, they likewise have no authority to redetermine the custody conditions of an alien who crossed the border unlawfully without inspection, even if that alien has avoided apprehension for more than 2 years.”

“Holding otherwise would require reading the INA to conclude that Congress intended that aliens unlawfully entering the United States without inspection, particularly those who successfully evaded apprehension for more than 2 years, be rewarded with the opportunity for a bond hearing before an Immigration Judge, whereas aliens who present themselves to officers at a port of entry are ineligible for a bond hearing,” the panel wrote.

Rosenberger said it’s hard to say if the immigration board ruling will get overturned in federal court.

At least one challenge has already been filed in California, where the American Civil Liberties Union and Northwest Immigrant Rights Project have sued the federal government on behalf of several plaintiffs.•