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U.S. Immigration and Customs Enforcement (ICE) detains tens of thousands of people each day, including recently arrived asylum seekers and long-time community members, while they undergo civil immigration proceedings. For them, immigration detention is indistinct from incarceration — a system comprised of county jails and private prisons under contract with ICE.

Basic due process protections are unavailable to most in this system, raising serious constitutional concerns. ICE considers more than half of those detained to be subject to mandatory detention, with no access to a bond hearing at any time during their immigration court or appellate proceedings. Those who are able to seek release on bond from an immigration judge face an often insurmountable evidentiary burden. Additionally, exorbitant bond amounts mean many remain detained even if granted bond, simply because they are unable to pay. 

This policy brief outlines five primary due process deficiencies in ICE’s current bond system: no-bond detention; unfair and onerous evidentiary burdens; high bonds resulting in detention due to inability to pay; unconstitutionally prolonged detention; and racially disparate outcomes. The brief also presents recommendations to the Department of Homeland Security and the Department of Justice to mitigate the ensuing harms.