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Ben Schaefer,, 212-607-3372

March 11, 2020

NEW YORK – The New York Civil Liberties Union and Equal Justice Under Law today filed a federal class action lawsuit against Attorney General William Barr and other federal officials to halt unconstitutional practices at bond hearings in the Buffalo and Batavia immigration courts that have resulted in the jailing of hundreds if not thousands of people.  The lawsuit challenges the ongoing practice of placing the burden of proof on detained people, determining bond amounts without considering the ability to pay, and refusing to consider alternatives to detention other than money bond.

Two immigration judges in particular, Philip J. Montante Jr and Mary C. Baumgarten, are denying bond across the board. Between March 2019 and February 2020, they each ordered the person detained without bond 95% of the time.  By contrast, judges nationwide with similar caseloads ordered the person released on bond in 61 percent of cases. Out of the 204 judges with similar caseloads, they had the third and fourth lowest bond grant rates nationwide.

The lawsuit aims to reinstate fair, legal hearings out of Buffalo and Batavia and to make sure that anybody who received a flawed one gets another.

“People are entitled to fair and lawful bond hearings,” said NYCLU staff attorney Victoria Roeck. “In the Buffalo and Batavia courts, detained people are forced to undergo impossible and unconstitutional processes to seek release and are often just being denied it outright.”

The class in the lawsuit includes hundreds of people detained at the Buffalo Federal Detention Facility in Batavia, New York who have been receiving rubber-stamp bond denials, in addition to hundreds of others who are detained across the country but whose cases are heard through video teleconference in Buffalo and Batavia. In these hearings, judges presume the detained person is dangerous or unlikely to show up to court unless the person can prove otherwise. This practice results in the unlawful detention of hundreds of people, many of whom are unable to obtain evidence to support their case from detention or cannot afford an attorney to help them navigate complex immigration laws. Even if the judge does determine the person can be released, the judge simply sets a money bond without any consideration of whether the person can pay that bond or whether other alternatives to detention would be equally effective.

"We are excited to partner with the NYCLU on this important case,” said executive director of Equal Justice Under law Phil Telfeyan. “It is time to bring justice to the countless immigrants being wrongfully detained with unfair bond procedures and unaffordable bond amounts. Through this lawsuit, we aim to ensure these individuals receive a fair and just hearing, as guaranteed by the Constitution."

One of the lead plaintiffs in the class, Mr. Antonio Lopez Agustin, has been held at the Richwood Correctional Center in Richwood, Louisiana since September 2019. He was originally arrested in the Mississippi ICE raids that took place in the fall of 2019. Judge Baumgarten scheduled his initial hearing for three months after his arrest via videoconference, but did not rule on whether to allow his attorney to take part in the video conference, effectively denying Mr. Agustin representation. His wife and daughter have struggled financially during his detention and expect significant hardship if he is removed from the country.

Today Mr. Agustin has a hearing for cancellation of deportation.

“People in immigration court should be able to count on a fair hearing regardless of which immigration judge is hearing their case,” said NYCLU staff attorney Megan Sallomi. “This administration is determined to hold immigrants in detention indefinitely, at significant public expense, even when it is clearly contrary to the public interest.”

The Batavia facility ranks third in the country for refusing to grant bond among immigration courts with similar caseloads, granting bond only 20.9 percent of the time. Nationally, the median grant rate for all similar immigration courts is approximately 35 percent.

The NYCLU previously sued the Batavia facility on behalf of a class of asylum-seekers who were being indiscriminately denied parole. In November 2017, a federal district court in Rochester ruled in favor of the class, ordering an overhaul of the parole process, including that parole notices be issued in the language an asylum-seeker understands, that parole interviews be granted, and that asylum-seekers be informed and offered explanation of parole decisions. It also ordered that people whose parole was denied be reconsidered.

NYCLU attorneys Megan Sallomi, Victoria Roeck, Amy Belsher, Jordan Laris Cohen, and Christopher Dunn, and Equal Justice Under Law attorneys James Davey and Phil Telfeyan are counsel on the case.