ARTICLES
A DETAINEE’S CATCH-22: WHAT CAN NEW
JERSEY’S BAIL REFORM TEACH US ABOUT
IMMIGRATION DETENTION?
IMAN A. SAAD*
ABSTRACT
Bail reform has been an ongoing project for years for both scholars and
advocates, and now many states have adopted some measure of bail reform
policy, often with positive results. Scholarship has long discussed the need
for the elimination of monetary bail and an overhaul of detention practices in
the federal immigration system. However, the immigration detention regime
has learned no lessons from recent developments in the criminal justice sys-
tem. Federal immigration detention still heavily relies on the use of monetary
bond and overly invasive surveillance and alternatives-to-detention systems.
Moreover, the current immigration bond systems lack any meaningful risk
assessment tools that exist in the criminal justice pre-trial detention systems,
leading to an overwhelming tendency in favor of detention because immigra-
tion officials lack guidance, training, or expertise to meaningfully make
detention determinations. In 2017, New Jersey eliminated monetary bail and
overhauled its pre-trial detention system, drastically reducing its detention
rates. This article contends that as states implement bail reform in the crimi-
nal justice system, the immigration system continues to fall behind this
changing landscape. Comparing the immigration detention system with New
Jersey’s bail reform system, this article hopes to highlight the severe discrep-
ancies between the two detention systems. This article utilizes the New Jersey
* Supervising Immigration Attorney at Bread for the City in Washington, D.C. 2022-2024 Clinical
Teaching Fellow, Georgetown University Law Center, Center for Applied Legal Studies. This article ben-
efitted from discussion and feedback in several formal and informal settings, including workshops within
the Georgetown University Law Center as well as feedback from esteemed faculty members across the
country. Thank you to Andrew Schoenholtz, Philip Schrag, Deborah Epstein, Robin West as well as all
my colleagues at Georgetown University Law Center for their support and feedback on earlier drafts. The
author is also incredibly grateful to Shira Wisotsky and her team at Legal Services of New Jersey as well
as all the other advocates and practitioners who serve on the frontlines representing detained noncitizens
in New Jersey. © 2025, Iman A. Saad.
1
detention system as a model to compare the current immigration bond system.
Not only does this comparative analysis highlight the deficiencies in the im-
migration detention system, but it also brings to the forefront the ways in
which these two detention systems intersect. Noncitizen defendants find them-
selves in the ultimate Catch-22—after being released from criminal pre-trial
detention, they end up in immigration detention where they cannot secure
release due to their pending criminal charges, despite a state criminal court
judge having already found them to merit release. This article proposes that
the immigration detention system must catch up to the reforms in the criminal
justice system in order for both systems to work efficiently and fairly.
TABLE OF CONTENTS
I. INTRODUCTION ..................................... 3
II. OVERVIEW OF IMMIGRATION DETENTION AND BOND SYSTEM . . . . . . . 7
A. Immigration Detention Procedures and Legal Standards . . 8
B. Current Immigration Detention Trends . . . . . . . . . . . . . . 12
C. Lack of Comprehensive Alternatives to Detention and
Pre-Trial Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
III. STATE BAIL REFORM POLICIES AND IMPACT: NEW JERSEY’S MODEL . . 15
A. How Does New Jersey’s Bail Reform System Work?. . . . . 16
B. The Impact of New Jersey’s Criminal Justice Reform Act on
the Criminal Justice System ....................... 19
IV. HOW DOES IMMIGRATION DETENTION COMPARE TO CRIMINAL
PRE-TRIAL DETENTION POST-BAIL REFORM?. . . . . . . . . . . . . . . . . 22
A. Consequences of Immigration Detention Often Match, or
Exceed that, of Criminal Detention . . . . . . . . . . . . . . . . . 22
B. Lack of Meaningful Risk Assessment Tools or Guidance in
Immigration Custody Determinations. . . . . . . . . . . . . . . 24
C. Widespread Denial of Bond to Immigrant Detainees and
Disparity in Outcomes of Bond Hearings Before Judges . . 29
D. Impact of State Bail Reform on Immigrant Defendants. . . . 31
2 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 39:1
V. A PATH FORWARD: CAN THE IMMIGRATION SYSTEM CATCH UP TO
CRIMINAL JUSTICE AND BAIL REFORM?..................... 33
A. Reforming the Immigration Detention System.......... 33
B. Local and State Policy Changes for Immigrant
Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
I. INTRODUCTION
Oscar
1
, an asylum seeker, fled Honduras with his family after they experi-
enced threats from gang members. They arrived in the United States, without
valid entry documents, and were paroled
2
by immigration officials and reset-
tled in New Jersey. A few years into the family’s new life in New Jersey,
Oscar was arrested following a domestic dispute with his partner and chil-
dren, his first and only arrest. The prosecution declined to pursue pre-trial
criminal detention and the New Jersey criminal court released Oscar from
detention within a few days of his arrest. Pursuant to New Jersey’s recent bail
reform policies, Oscar was released from detention on non-monetary condi-
tions. The parties agreed that Oscar was reasonably likely to continue to
appear at his future hearings and did not pose a safety risk to others. Despite
this, the U.S. Department of Homeland Security’s Immigration and Customs
Enforcement (“ICE”) detained Oscar immediately after his release from
criminal custody and placed him in removal proceedings.
Oscar asked the immigration court to release him from detention, this time
on a monetary bond. Instead, the immigration judge found that Oscar did not
warrant release from detention due to the pending charges resulting from his
first-time arrest—the very same charges that the prosecution and state crimi-
nal judge found did not warrant pre-trial detention while the criminal case
was being adjudicated. Denied release from detention, Oscar then languished
in immigration detention for over a year and a half until he could no longer
bear detention in the midst of a global pandemic. By this point, the criminal
prosecution was willing to offer Pre-Trial Intervention to Oscar, a diversion-
ary program that helps first-time offenders avoid a criminal conviction with
the use of supervision programs and rehabilitation resources. Through this
state program, Oscar had a pathway to return to his life without a criminal re-
cord. However, due to his continued detention by immigration officials,
Oscar was unable to attend any of his criminal court hearings and was unable
1. This name has been changed to preserve anonymity and confidentiality. Documents related to this
case are in possession of the author.
2. Parole is an immigration policy which enables certain individuals seeking entry into the United
States that are otherwise subject to mandatory detention to be released into the interior of the country
pending the adjudication of their removal proceedings. See INA § 212(d)(5). Parole is often used to allow
the release of asylum seekers who seek entry at a border or airport port-of-entry.
2024] A DETAINEE’S CATCH-22 3
