In National Bail Fund Network v. DHS, advocacy groups sued ICE and DHS for not publicly disclosing their immigration bond policies, violating FOIA requirements. The case was settled with ICE agreeing to release bond procedures and create a new “Bond Processing” section on their FOIA Library website.
THE ISSUE
Many noncitizens who are detained in the custody of the U.S. Immigration and Customs Enforcement (ICE) during their removal proceedings are eligible to be released from detention upon payment of a bond. The bond amount is set by either ICE or an immigration judge. Once the set bond amount is paid by an “obligor” – usually a family member or friend of the noncitizen, a bond fund, or a bail/bond company – ICE releases the noncitizen. The noncitizen may live freely in the community until their removal proceedings are complete or until they violate a term of their release and ICE redetains them. Once the noncitizen completes removal proceedings or is re-detained by ICE, the bond amount is returned – or refunded – to the obligor.
Even though bond payment and refund is a common process within the immigration detention system, much of the process is a mystery to the public. ICE does not share or make publicly accessible its own policies and procedures for paying immigration bonds, whether at the national level or at the local office level. ICE’s failure to publish this information publicly harms the American public who are attempting to post bond or obtain a refund of a bond payment, as well as the noncitizens who must wait in ICE custody while their loved ones attempt to post bond for them. Because ICE’s policies and procedures on bond payment and refund impact the public, ICE has an obligation under the Freedom of Information Act (FOIA) statute to release their policies and procedures of their own accord. This is known as proactive disclosure
Because ICE did not proactively disclose their policies, those who want to learn how to post a bond to release their loved ones from ICE custody or learn how to obtain a refund of a bond payment could only turn to guides created by immigration nonprofits and local bond funds, who had themselves secured the relevant information through their own FOIA requests or through their own experiences attempting to post and refund bond payments. Moreover, policies often varied between local ICE offices – such as, at what time offices stopped accepting bond payments, when they would take a lunch break, and what documents were required for an obligor to post bond. Lack of knowledge about the policies and procedures frequently led to delays in posting bond, and therefore securing noncitizens’ release from detention, and delays in obtaining refunds of bond payments.
WHAT ILD IS DOING
On June 24, 2022, eight bond funds around the country and the American Immigration Council submitted a request to ICE pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), asking ICE to proactively publish policy documents relating to payment of bonds, release of noncitizens from ICE custody, refund of bond payments, and other related processes. ICE did not respond to this administrative FOIA request
On December 8, 2022, ILD, with co-counsel American Immigration Council (AIC), the Refugee and Immigrant Center for Education and Legal Services (RAICES), and Citizens for Responsibility and Ethics in Washington (CREW), filed a federal lawsuit against ICE and the Department of Homeland Security (DHS) on behalf of five of the organizations who submitted the administrative FOIA request: National Bail Fund Network, NorCal Resist, RAICES, Prairielands Freedom Fund, and AIC. The lawsuit, filed in the Northern District of California, alleged that DHS and ICE had violated their obligations to proactively disclose records pursuant to the FOIA statute and asked that the Court order the agencies to do so.
CURRENT STATUS
On January 11, 2024, the parties reached a settlement agreement. Pursuant to the agreement, the agencies agreed to release records relating to bond procedures – including records relating to the implementation of CeBonds, ICE’s new online bond posting system – to Plaintiffs. ICE also created a new “Bond Processing” category on their FOIA Library website and proactively posted their Bond Management Handbook and two bond-related policy memos.
Requests and Documents
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