Published Jul 19, 2023
The latest case-by-case Immigration Court records show that detained immigrants seeking release on bond have widely differing outcomes depending upon where they are being held. The odds that Immigration Judges granted bond motions varied from a low of just three percent at the Northwest Detention Center in the state of Washington to 45 percent at the Krome North Special Processing Center in Florida. The Aurora Immigration Court in Colorado and the Conroe Immigration Court in Texas had almost as high grant rates by Immigration Judges of bond motions of 42 percent and 44 percent, respectively. The Eloy Detention Center in Arizona had just a 10 percent grant rate. See Figure 1 which includes all detention locations with at least 500 bond decisions in FY 2023. Complete details on the outcome of bond motions at every detention facility can be found using TRAC’s online free Immigration Court Bond Hearings tool.
Bond grant rates also varied by nationality. Compared to the overall bond grant rate of 31 percent thus far during FY 2023, immigrants from the Dominican Republic were granted bond just 16 percent of the time, while those from Turkey were successful 50 percent of the time and individuals from Nicaragua were granted bond 39 percent of the time. Individuals from Peru and Colombia had lower than average bond grant rates awarded by Immigration Judges of 22 percent and 23 percent, respectively. See Figure 2 which includes nationalities that had at least 500 bond decisions this year. TRAC has reported earlier on the importance of nationality in Immigration Court bond decisions in its February 2019 report.
The above figures summarize outcomes on over 19,000 bond hearings held before Immigration Judges during the first nine months of FY 2023. Immigrants were represented in roughly six out of ten (59%) hearings. Without representation, bond grant rates were just 14 percent. The odds of a bond being granted increased three-fold to 42 percent with an attorney.
These results were based on detailed case-by-case court records analyzed by the Transactional Records Access Clearinghouse (TRAC). These data were obtained by TRAC through a series of Freedom of Information Act (FOIA) requests.
Being granted bond by an Immigration Judge is just the first hurdle an immigrant faces. The next hurdle is coming up with a way of posting the bond amount set. The higher this bond amount, the higher the hurdle for some immigrants who ultimately are unable to post bond and thus remain detained.
The median amount of bond set by Immigration Judges in FY 2023 was $7,000. This is up from the $5,000 median bond amount in FY 2022. The most common bond amounts set were either $10,000 or $5,000 this year. But amounts ranged from release with no bond required for 276 immigrants, to bonds of $25,000 or more in 74 cases.
Bond was denied in the vast majority of all bond hearings so far this year. As mentioned earlier, bond was granted in just 31 percent of cases heard during the first nine months of FY 2023. This represents a dramatic fall from earlier administrations. For example, in FY 2001 the grant rate on bond motions was 51 percent. While it subsequently fell to 35 percent by FY 2005, since then it has never before been as low as seen today. More specifically, bond grant rates even climbed to 56 percent during the latter years of the Obama administration. While during the Trump administration rates began falling from this peak, by the end of the Trump administration in FY 2020 46 percent of bond motions were still being granted.
It is also clear that while bond motion grant rates are down, so too are the number of bond motions that are being filed. Indeed, cases with bond motions during the last three years have fallen below the levels which prevailed even two decades ago. See Figure 4.
What explains these trends? Is it that Immigration Judges have become much stricter in granting bond, or has the make-up of bond cases markedly altered so even with no change in standards fewer grants are justified?
We do know that there has been a dramatic decline in overall ICE detention of immigrants since the COVID-19 pandemic hit in 2020 and Immigration and Customs Enforcement (ICE) officials started releasing immigrants from detention. The agency was pressed to make these releases since its facilities could not accommodate the necessary measures for separation and isolation of detainees needed to halt the rapid spread of the outbreak. At the end of FY 2019 before the pandemic hit, ICE was holding nearly 51,000 immigrants in its detention facilities. By June of 2020 ICE reports this had fallen to 24,000 or less than half. By the time President Biden assumed office, the number ICE detained had fallen even further to around 14,000. Since then, detention numbers have risen. As of the beginning of July 2023, overall detention had increased back up to 30,000 – but this is still way below its earlier level before the pandemic hit. See TRAC Detention Quick Facts for detailed timeline. The composition of detainees has also shifted, reflecting changes in the make-up of ICE arrests, and the nationalities of immigrants seeking entry and not being immediately turned away at our southwest border.
However, these ICE figures don’t indicate how many of those detained had pending cases in Immigration Court. For this TRAC had to rely on Immigration Court records alone. While available information in Court records is less reliable than desired, it appears that fairly recently it had been common for 25 to 35 percent of immigrants in Immigration Court proceedings to be detained. This clearly is no longer the case. See Figure 5. (Please note that EOIR’s custody figures for FY 2020 as shown in Figure 5 are particularly problematic.)
This year available Court records indicate that less than one in ten immigrants (9%) in completed cases were shown as detained. Many of these were detained in special proceedings involving credible fear and reasonable fear reviews which take place quickly. Thus, limiting the comparison to just deportation cases, the number drops to only 4 percent of immigrants who were detained at the time their Court case concluded.
Immigration Court records track the current status of an immigrant’s custody rather than an immigrant’s history of detention. Thus, it is not possible to determine how many more individuals were detained and then released during the processing of their cases. These individuals aren’t being included in counts focusing just on detention status at the time their cases concluded.
Clearly, large differences exist in judge decisions on bond motions depending upon the detention hearing location and the nationality of the immigrant. At the same time, despite rapidly increasing filings in Immigration Court, the actual number as well as proportion of immigrants detained has substantially fallen. This has been accompanied with a substantial reduction in the motions filed requesting Immigration Judges to grant bond.
With so many changes taking place, why differences in bond decisions currently exist, or whether lower bond grant rates are due to judges particularly at some locations becoming stricter in their standards in granting bond or fewer grants are justified given the changed makeup of the bond motion workload at a detention location. or some combination of these reasons, is difficult to say. With the current data now available, it is not feasible to disentangle the many interacting forces at play.
While not included in this study, the process of posting bond as well as the ability of detainees to post bond once set, also needs more attention. Immigration Court records don’t track if or when bond is posted. Concern about ICE practices in this area led a broad coalition of advocates to bring a FOIA suit last December seeking to compel ICE “to publish on its website guidelines and procedures explaining how the agency processes bonds for the release of individuals in detention.”
Detention itself has very important implications not just for these immigrants, to their families, but for the wider communities in which they live. Often not adequately recognized are important negative potential impacts on the functioning of the Court itself. Thus, how current processes work in determining who will be released on bond, as well as barriers to the posting of bond, are topics that require continuing public attention and oversight.