The unreturned bond money stood at $204 million as of July 31, 2018, according to the data, which immigration-law clinics at Stanford University and the University of California at Davis obtained and shared exclusively with The Washington Post. The pot of money grew by $57.3 million between September 2014 and July 2018, the data shows.
More than 18,000 bond payments went unclaimed in that four-year period, according to the data.
Although the trust fund — which the Treasury Department maintains — cannot be used for any other purpose, getting the money back to immigrants and their friends and families has proved a difficult and lengthy process. ICE officials said the agency makes multiple attempts to reach the people who posted the bond, but paperwork and checks mailed to them sometimes are undeliverable or receive no response, and it can be impossible to find the people if they have moved out of the country. Those who do submit claims, ICE said, receive their money within a month.
ICE did not provide data on average wait times to claim the money, and several lawyers and immigrants told The Post they have in some cases waited a year or longer after submitting for reimbursement.
Numerous immigration attorneys said the system for reclaiming the funds is mystifying and nearly impossible to navigate without a lawyer or English-language proficiency, and some who pay the bonds are unlikely to see the money again. As bond amounts remain on the rise, lawyers said thousands of people are putting their life savings in ICE’s hands to secure an immigrant’s temporary freedom without any idea of when or if they’ll see the money again. Many immigrants say it takes far longer than a month to reclaim their money.
“The toll on a poor family having to pay thousands of dollars in bond can’t be overstated,” said Jayashri Srikantiah, director of Stanford’s Immigrants’ Rights Clinic. “Clearly, something is breaking down when there are hundreds of millions of dollars sitting in an account that belongs to those immigrant families. If nothing else is clear, that is clear.”
Srikantiah and Holly S. Cooper, co-director of UC Davis’s Immigration Law Clinic, said they intend to push for congressional oversight of ICE’s bond system. They said the amassing of bond money indicates a serious problem and could amount to a massive theft from people who can least afford it.
Marco Antonio Torres Rojas, a father of three from Mexico, won his immigration case in August, but it took roughly seven months for ICE to return the $25,000 bond his family and friends paid to gain his release — seven years ago.
When he was detained in 2012 — for overstaying an H-2B work visa — an immigration attorney assured his family that paying the bond would be the only way to stave off deportation. But for Rojas, a landscaper and snowplow driver in Minnesota, $25,000 appeared impossible. He and his wife had just a few thousand dollars in savings.
So they started pooling money: Three thousand from an aunt. Four thousand from a cousin. Eight thousand from Rojas’s closest friend. Sums that drove each into debt.
“We felt a sense of desperation,” Rojas said.
Pay legal fees, or bond fees?
While criminal defendants typically can pay a bondsman 10 percent of the set bail amount to gain release, in the immigration system about 90 percent of bonds require cash for the whole amount upfront.
ICE initially sets bonds on a “case-by-case basis,” the agency said, though not everyone is eligible for bond or release.
For those who are eligible, bonds have been steadily rising since the second half of the Obama administration, after an influx of Central American immigrants. The average bond set by a judge was $3,000 to $5,000 for years, but it rose to $8,000 in fiscal year 2016, according to data from the Executive Office of Immigration Review. Bonds have remained at that level or slightly higher into the first months of fiscal year 2019.
Lawyers say the unexplained rises in fees have forced detainees into an impossible choice.
“I hear from people who call me asking, ‘Should I use the money to pay legal fees or pay the bond fees?’ ” Cooper said. “ ‘I only have one truck. If I sell it, it’s $5,000.’ ”
Once the money is raised — often from numerous people in each case — only a U.S. citizen or legal permanent resident can post the bond. Because many immigrants don’t have a close relative who fits the definition, they sometimes turn to acquaintances or neighbors, said Michelle N. Mendez, an immigration attorney at the Catholic Legal Immigration Network in Silver Spring, Md. That person, according to ICE policies, is the only one who will ever get a copy of the bond paperwork.
Mendez said many immigrants don’t know that once the bond is posted, only the person who posted the bond can get it back.
“Then life happens,” Mendez said. “Maybe they don’t keep in touch with the obligor. Maybe the obligor is not a person of integrity — he’s a fraudster. Or they just lose touch with the obligor, because the obligor is some random person they found to post the bond.”
The person who posted the bond money might move across the country or even out of the country; they might lose the original paperwork required to reclaim the money back, creating additional hurdles; the obligor might die.
Gloria Contreras Edin, an immigration attorney in Minnesota, said she had one undocumented client whose obligor was on the brink of dying of cancer. Before the man died, her client wheeled him into her office so he could sign over the bond responsibilities to someone else. Her client, Anibal El Verengue, a Guatemalan who lives in Minnesota and was ordered removed in 2015 for entering the country illegally, said he would not have known to do this if he did not have an attorney to advise him.
A friend who lives in Idaho and is married to a U.S. citizen offered to be responsible for El Verengue’s bond; El Verengue said he has been waiting on a refund of the bond payment since December. He then had to pay a second bond after he was arrested on DUI charges, a bond that is still open, his attorney said.
“One friend who I owe money won’t even speak to me, because he doesn’t trust me anymore,” said El Verengue, whose application for asylum is pending.
Money just sits there
Mendez said she discovered how dire the problem was in 2009, two years after a well-publicized immigration raid at a Baltimore 7-Eleven resulted in numerous deportations. When Mendez checked in on some of the families of the deported men, she discovered they were living in poverty.
“I wanted to make sure that when the breadwinner got deported, the family would have some money,” Mendez said. “Those were the cases where I started to think: How do we get this money back? Nobody really knew . . . At that point, they’re really so far removed from the bond posting — thinking, ‘Oh well. I lost my case. I’m not entitled to anything’ — that they just let it be.”
To assist the Baltimore-area families, she started investigating the process for bond refunds: Once an immigrant’s case is closed — win or lose — the bond is “canceled” so long as they met the legal conditions that went along with it. The person who posted the bond, not the immigrant, should receive notice by mail.
“ICE does not notify the alien for whom the bond was executed, because its contract is with the obligor,” ICE said in a statement.
ICE makes three attempts to locate the person, but if the person who posted the bond did not file paperwork indicating a change of address, it might not be possible to find them.
And even those who follow the procedures said the process is rife with delays.
María Sosa, a legal permanent resident in California, said that her husband won his immigration case in October but that she did not receive a bond cancellation notice from ICE until January. Unable to speak English, she made numerous visits to an ICE office to understand what she needed to do to get her money back; she received it on March 29.
To pay the $3,000 bond in the first place, Sosa, who works at a factory that makes prepackaged food, borrowed money from three people and dipped into her savings, which were supposed to fund a visit to Mexico to visit family. While she was waiting for the check from ICE, she said, her father-in-law in Mexico grew seriously ill and died.
She said she and her husband could not afford to attend his funeral.
“The whole system is created in a way that doesn’t foster the accessibility to those funds,” Contreras Edin said. “And so many times the money is left and just sits there.”
ICE pays interest on bond money while unclaimed, up to one year. After that, the funds are transferred to the Treasury Department. The Treasury Department said it does not know what year the $204 million began accumulating. The U.S. government is not allowed to use the money unless immigrants fail to adhere to bond conditions and forfeit it, otherwise known as a bond breach.
Bonds can be breached for reasons such as failure to show up in court or failure to turn the immigrant over to authorities if ICE asks the obligor to do so. But there can also be mistakes. Mendez recalled a case in which ICE breached her client’s bond for failure to show up to be deported — but her client was still appealing the removal order, and ICE had apparently missed that information, according to 2015 correspondence with ICE she provided to The Post.
About $34.5 million in bonds is forfeited each year, money that ICE uses to defray detention and apprehension costs.
Advocates at Stanford and UC Davis argue that the arrangement creates a conflict of interest.
“They obviously have incentive to not exercise discretion favorably and to breach more bonds,” said Emily Child, who worked on the Stanford and UC Davis research with Cooper. “That money goes right back into their pockets.”
ICE said that all breach decisions can be appealed to U.S. Citizenship and Immigration Services. When breaching bonds, agents consider whether the violation was an accident or intentional and whether the obligor or immigrant was acting in good faith, ICE said in a statement.
'An incredible amount'
Rojas was getting nervous. It was March, and he had been waiting seven months for a check that would be addressed to his brother’s wife, the U.S. citizen who posted his bond.
He called his attorney, Contreras Edin, expressing his fear that something had fallen through the cracks. The lawyer’s office contacted ICE bond specialists. A few weeks later, the check arrived.
Cooper and Srikantiah said they believe that working with an attorney is crucial to recovering the bond money, and many immigrants and those who post the bonds don’t have lawyers or can’t afford one.
They argue that ICE’s systems are outdated and cumbersome, and they believe immigrants should receive copies of their bond paperwork in a language they can understand, something that could mitigate the possibility of fraud and ensure that those who pay bonds receive the money back when they are entitled to it.
“While something like $5,000 or $10,000 might not be a lot of money to the federal government, to an individual family that has pulled all of their money together in order to get a loved one out of detention, it’s an incredible amount,” Srikantiah said. “With detention growing at the rate it is, we think this is a really good time for Congress to provide some oversight and actually investigate why this is happening.”