What Is an “Appropriate” Surety Company for Immigration Bond Purposes?

A friend sent me a curious article from the News Leader newspaper in Virginia detailing a lawsuit filed by Nexus Services, Inc., a company that provides immigration bond and alternative-to-detention (ATD) services for aliens charged in removal proceedings.

The company is alleging conspiracy by Staunton County, Va., officials with a competing bond company owner to dispossess them of their recent attempts to move into the business of providing criminal bail bonds as well.

Everything about the situation is odd, to say the least, if the article is to be believed. One of the reasons that the competitor is named in the lawsuit is because he made county officials aware that the two owners of Nexus (described as "a philanthropic couple", whatever that means) apparently have each been convicted of various counts of check fraud. Nexus alleges that the competitor was attempting to ensure they were unable to compete with him. But the article asserts that this philanthropic couple intended to provide the bail bonds to criminal defendants gratis. This defies any kind of rational business plan I've ever heard of, except in the situation when one can sustain temporary losses to try to drive others out of business, at which point you have cornered the market.

Another curiosity is that this company not only provides immigration bonds and ATD services (ankle bracelets and other electronic monitoring devices), but also rental properties for its alien clients. I don't know what to make of this. What comes to mind is the old business model of mining company towns that would pay salaries to the miners, but then charge them for living in company-provided housing and buying at the company-provided general store … at company-established prices, thus ensuring a workforce perpetually in debt to the mine owners. Maybe I'm missing something in the Nexus equation, but the possibility of ethical conflict seems to loom large.

Reading the article, I was prompted to go back and read the legal provision authorizing immigration bonds when aliens have been arrested and charged with deportable offenses, which can be found at Section 236 of the INA. I was looking for statutory guidance on bonding companies (referred to as "surety agents" since they provide the financial surety guaranteeing that if the alien flees, the bond money will be paid), but found nothing. So I looked at the corresponding section of the Code of Federal Regulations (CFRs), at 8 CFR Section 236; nothing there either. In fact, the only thing I could find having to do with government oversight of bonding companies was on the official immigration bond form itself, Form I-352, which makes reference to "acceptable" surety companies. If there is guidance on what "acceptable" means, I haven't found it in any readily available public sources. One wonders whether the criminal history of principals in such a company is, or should be, calculated into what is acceptable by the federal government.

Then there is the issue of electronic monitoring, which is described in two different ways in the article, and the difference is significant. The News Leader initially says "Nexus provides GPS tracking to detained immigrants so they can be released while awaiting immigration court hearings." This is what I referred to previously as the ATD program. The federal government contracts this program out to private corporations, for which it pays dearly (well, actually, for which we, the taxpayers, pay dearly). ATD has been billed as a less-costly alternative to placing aliens in extended detention while attending their deportation hearings, but readers should understand that it has been a poorly run program plagued with difficulties even in such basic matters as being able to say when an alien "completes" the program because he complies with court appearances or when he "completes" it because he's cut off the ankle bracelet and fled, thus resulting in his rejection from further participation. It has, however, been a cash cow for the companies that were fortunate enough to win the contracts.

Later in the article, the News Leader appears to say something different about this electronic monitoring: "As part of its immigration-related business, Nexus will cover the bond that allows their clients' release, but in return the client must wear a GPS tracking bracelet provided by the company and pay $11 per day for the service."

If what is being described is an entirely different proposition from the government-sponsored and funded ATD, I'm all for it. Under such a scenario, the ankle bracelet is simply a requirement imposed by the bonding agent, not the government. The government sets the bond, and in return for agreeing to put the money up, the surety company requires the alien to wear a monitoring bracelet so that they are able to track him and be sure he shows up for court when he's supposed to — after all, it's their money on the line. This costs the government nothing on contractual outlays and it renders aliens a more acceptable bail risk. (In recent years, the rate of aliens absconding from proceedings, leaving bonding companies in the lurch, has been so high that many surety agents have ceased to underwrite appearance bonds in removal proceedings.)

Finally, and importantly, such a model eliminates questions of success or failure for electronic monitoring, or at least puts that onus on the bond companies. For the government, it becomes a simple proposition: Has the alien appeared for his hearing and for his removal, if ordered deported? If not, breach the bond and demand that the surety company, as obligor, pony up the money. In the end, market forces would determine whether or not ankle bracelets and other forms of ATD are successful, because faced with mounting losses, bond companies would simply stop imposing them as a condition of posting bond, and probably get out of the business of immigration bonds.

That, ladies and gentlemen, is how a properly structured ATD program should work — not based on feel-good arguments about the inhumanity of detention, although nearly a million fugitive aliens are walking the streets of America having absconded from the legal proceedings designed to afford them due process. If our immigration system is broken, it is because the administration has made even the immigration courts into such a laughing stock that aliens know they can evade with no consequences whatever.

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