The rate of representation for immigration court bond hearings, where detained immigrants have a chance to argue that they're not flight risks or dangers to society, has nearly doubled since 2015, rising from 35% to 66% in the first eight months of the current fiscal year.
Having a lawyer in court typically makes a positive impact, but according to a report this month by the Transactional Records Access Clearinghouse at Syracuse University, bond grant rates have not improved alongside rising representation rates.
Aaron C. Hall, director of removal defense at the immigration law firm Joseph & Hall PC, told Law360 that the increase in representation is "excellent news" and could be related to media coverage of immigration detention during the Trump administration. Heightened awareness of access to justice issues, he said, likely boosts funding and lawyer interest in pro bono services.
But Hall added that the low rate of grants is surprising considering the ongoing pandemic, not to mention the increased presence of lawyers in court.
"We might just have a core of immigration judges at this time who are less likely to grant bond than perhaps they have been in the past," Hall said, noting that the Trump administration has increasingly turned to detention as an immigration enforcement tool.
"That leads to people spending months, even years in detention — even if they ultimately win their case," he added.
Those that are offered release are having to pay higher and higher sums for their freedom. TRAC's June 18 report found that the median bond amount is now $8,500, a 30% increase over the median amount of $6,500 in 2015.
Previous TRAC reports have found that the biggest determinant in how much money must be paid is the court in question — the immigration court in Tacoma, Washington, for example, had a $15,000 median bond for the roughly 1,252 grants it issued in 2018.
That's three times the $5,000 median bond in Chicago for the same year, when judges granted bond in 1,003 hearings.
Immigration Judge Ashley Tabaddor, speaking in her capacity as president of the National Association of Immigration Judges, told Law360 that "each court really has a culture of its own."
"Ultimately a bond is the weighing of a number of factors, including 'how much is [the U.S. Department of Homeland Security] fighting it?' she said. "I've had DHS come to me and say, 'We're asking $15,000 for bond for this case.' And I'm like, 'Where is this number coming from?'"
She added that, since the COVID-19 pandemic took hold in the U.S., immigration judges are presiding over fewer bond fewer hearings because there are less arrests and because those who are arrested by DHS are increasingly being released.
"This is the lowest number of people in detention that we've had in many many years," she said. "But there are the same number of attorneys providing services, so that could explain the larger rate of representation this year."
For those who are being detained, Tabaddor noted that proving you will complete the full case and not threaten the community has become more difficult.
"You need sponsorship and info from sponsors, and it can be harder to get that information into facilities," she said. "Because they have the burden, any challenge on getting the necessary evidence obviously then reflects in the outcome."
The Executive Office of Immigration Review declined to comment on TRAC's report.
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--Editing by Katherine Rautenberg.