Undocumented Immigrants Who Can't Afford Bond Sue Government For Violating Fifth Amendment

The American Civil Liberties Union of Southern California filed a class action lawsuit against the federal government this week on behalf of two undocumented immigrants who have been sitting in jails — one for several years — because immigration enforcement refuses to allow them to post bail with anything but cold, hard cash. The bond amounts, they say, are unreasonable.

The ACLU contends the defendants — which include the Justice Department and other law enforcement agencies — aren’t considering detainees’ financial situations in determining bail and are violating the due process clause of the Constitution. Most U.S. citizens are able to use other controls to make sure they do not flee after being released (like electronic monitoring) or are able to post bail with either a bond or by putting up property for collateral. The Department of Homeland Security has no policy to take immigrant financial circumstances into consideration, the ACLU said.

“Poverty or lack of financial resources should not deprive a person of his or her freedom while in civil immigration proceedings,” Michael Kaufman, an ACLU attorney, said in a statement. “Such detention violates the due process and equal protection guarantees of the Fifth Amendment, the Eighth Amendment’s Excessive Bail Clause and the immigration laws.”

The Department of Homeland Security and the Executive Office for Immigration Review told Buzzfeed News they do not comment on pending litigation.

Xochitl Hernandez, the chief plaintiff in the case, is currently sitting in an Adelanto, California, facility for a decade-old shoplifting conviction that resulted in a $60,000 bond, the complaint filed by the ACLU said. Hernandez has lived in the United States for more than 25 years and provided care at home for four grandchildren while her five children (all of whom are American citizens) worked paycheck-to-paycheck jobs to pay rent and buy food.

Cesar Matias, another plaintiff, has been stuck in a Santa Ana, California, jail for more than four years. A Honduran citizen, Matias is petitioning the U.S. government for asylum saying that, as a gay man, he suffered severe persecution in his home country. Matias is a former Los Angeles hair stylist and can’t afford his $3,000 bail.

Matias has been given a stay of deportation and the ACLU says Hernandez qualifies for one.

The Latin Post notes the two individuals are not anomalies, and there are hundreds of others who may be sitting in jails with little to no hope of receiving bond amounts they can manage.