In my past posts I have identified several issues with the lack of safeguards in immigration bond proceedings. During the course of my research I called several bond companies and inquired about their services. In this post I want to explore what happens when immigration judges set bond amounts that are too high for families to afford and they are forced to contract with bond companies.
Immigration bond, if paid directly to ICE, needs to be paid in full. When bond is set at an amount that a detainee and their family cannot afford, they often contract with bond companies to get a “surety bond” – a promise that they will either pay the full amount or comply with other terms as set in the contract. Most companies require collateral, usually in the form of a house with enough equity, a credit card with enough credit to cover the full amount of the bond, cash, or a combination of these three assets. One of the bail bond agents I spoke with claimed that there is a 90% chance that if the bond is paid directly to ICE the bond will be “lost”; not refunded once the proceeding is over.
Most bond companies also charge a one-time premium, based on the total bond amount, usually between 15% to 20%. This premium is higher than the usual 10% in criminal cases; the reason given by bond companies is that the risk that immigrants will not show up to court is higher than in criminal cases. There may also be other processing fees. Some other bond companies require a non-refundable premium each year, usually 10%, until the case is closed. Since immigration proceedings can take years, immigrants and their families can end up paying thousands of dollars in fees alone.
The Religious Based Organization “Helping” Families Reunite:
But there is a new type of business that has emerged to service those who do not have property or other assets to use as collateral. The name is “Libre” by Nexus, a Virginia based company whose “GPS program” provides what they describe as a “critical service [that] guarantees the immigration bond, and uses the GPS to secure the bond” without requiring any collateral.
According to an article published in 2015, Nexus Services, which is the parent company of “Libre by Nexus”, was founded in 2008 as a non-profit that provided “GPS tracking ankle bracelets for criminal suspects” with the idea of reducing jail overcrowding. In 2013, it became a for-profit business, expanding to other areas, such as drug and alcohol treatment and monitoring programs, a property division that rents or sells homes and business spaces to their immigrant customers, and, more recently, Nexus Caridades, a non-profit providing free legal services to immigrants in detention and removal proceedings.
The GPS tracking program is the core of Nexus. But the fees and practices of this company have raised red flags and many are concerned about what they consider to be fraudulent practices by the company. Libre by Nexus’s website describes it not as a bail bond company, but as one that contracts with bail bond companies that actually post the immigration bond. Nexus claims to either pay the full amount of the bond to the bail bond company or place other property as collateral.
Nexus requires a “co-signer”, someone responsible for ensuring that the individual detained complies with ICE’s orders and shows up to court. This person does not have to be a Legal Permanent Resident or Citizen, which many immigrants may see as an advantage. It also requires two pictures, one of the individual detained and another of the place the individual will live once released, and a list of three references. Once the application has been approved, the families have to pay a one-time nonrefundable 20% premium, based upon the total amount of the bond, plus an $880 processing and installation fee for bonds over $5,000, also non-refundable. Nexus’s website claims that they do not keep any of that money, but one of Nexus’s agents told me that the 20% premium gets “divided”. She did not know how it gets divided, only that the fee was the equivalent of “interest” that the company keeps; it does not get paid to the actual bail bond company.
After the initial fee is paid then a GPS bracelet is placed on the immigrant as soon as he is released. After the first month, the families must pay a monthly non-refundable $420 rental fee for the GPS; the first month is “free”. The rental fee does not get applied to the bond amount. Once the individual is released there are two options, pay 80% of the bond at once and have the GPS removed, then pay the 20% remaining in monthly installments; or wear the GPS, pay the monthly rental fee, and anything additional gets applied to the bond balance. Once 80% of the bond has been paid, which could take several months or years, then the GPS will be removed and the immigrant will be responsible for monthly payments for the remaining 20%.
Another option is that once the immigrant gets released, but only after their release, they place a house or other property as collateral. The approval process takes one to three months, during which the GPS rental fee will continue to be paid. Regular bail bond companies accept collateral before paying the bond, but not Nexus.
So what is wrong with Libre by Nexus?
In 2013, the office of the Commonwealth Attorney for the State of Virginia, (CWA) the Fairfax City Police Department, and ICE Homeland Security Investigation (HSI) – an agency in charge of criminal and civil investigations involving national security threats, identity fraud, benefit fraud, or commercial fraud – all began investigating the practices of Libre by Nexus. The investigation began after several attorneys complained about what they considered were Nexus’s fraudulent practices. But to this date no charges have been filed against Nexus or any of its agents. A few weeks ago, I was provided the opportunity to review hundreds of pages of documents obtained via the Freedom of Information Act which gave me a better insight into how Nexus operates, and, while I cannot share those documents at this moment, here is what I found.
Many clients of Nexus have come forward and complained about the company’s practices. Here is a list of some of these practices and the red flags they raise:
- Nexus’s contracts states that they agree “to track the defendant pursuant to the bond set in the client’s local case, which currently is docketed in the EOIR IMMIGRATION Court” (See page 5). However, if a judge does not condition the bond on any kind of GPS monitoring, how can Nexus make the claim they are monitoring pursuant to conditions set by the Court?
- While Nexus does not make this express claim in writing, its agents have visited prospective clients in detention and have told them that they need, or that ICE or the immigration judge requires them, to contract with Nexus in order to “get out”. But ICE claims, and Nexus acknowledges in writing, that they are not affiliated with ICE or any other government agency and that they do not make release decisions (Page 5). However, there is a certain element of coercion when ordained ministers, employed by Nexus, visit desperate detainees and tell them that their only hope at getting out is Nexus.
- Attorneys have reported that judges have required their clients to comply with Nexus’s Programs. In at least one case, an immigration judge in Arlington conditioned, in writing, that a detainee be released on a $20,000 bond and comply with the Nexus program. As I wrote in my last post, judges have great discretion, but they also have the duty to be “Impartial” –“An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case.” (5 C.F.R. § 2635.101(b)(8)). To be clear, immigration judges can set a condition that a detainee wear a GPS device in order to be released, or set other “terms of release” (8 C.F.R. § 1236.1(d)(1)), but they have to do it through a government sponsor program. For instance, GEO’s Intensive Supervision Appearance Program (ISAP) is an alternative to detention program that provides GPS monitoring for the Department of Homeland Security. Nexus, as far as I can tell, does not have a contract with ICE the same way the GEO group does. While judges may not be violating the law, at the very least one can argue that they are abusing their discretion by failing to remain impartial and ordering compliance with a non-governmental program. See 5 C.F.R. § 2635.101(b)(8).
- When clients have complained about the GPS or the fees, Nexus agents have told them that if they remove the GPS then the judge will revoke the bond. Now, this is not correct, at least not in theory. If the judge does not release an individual on the condition that he wears a Nexus GPS (which the judge should not do; see (5 F.R. § 2635.101(b)(8)) then neither the judge nor ICE should be able to revoke the bond. However, Nexus can ask the bail bond company to contact ICE’s Enforcement and Removal Operations (ERO) and ask them to take the immigrant back for not complying with the bond requirements. Most officers comply with these requests. A bail bond company can always revoke bail and ICE can take the immigrant back into custody. But in this case, the immigrant contracts directly with Nexus and not with a bail bond company. However, Nexus has found a way to use ICE to essentially “enforce” their contract by having the bond company make the request with ERO. It is not clear what the bail bond companies get out of this or what the actual financial arrangement is between them and Nexus. Even if this is not illegal, it raises a lot of concerns and leaves a lot of room for abuse.
- Traditional Bail Bond Companies, such as Freedom Bail Bonds, have promoted Nexus as a program that can help get immigrants out of detention. In some cases, bail bond companies that work with Nexus have charged clients an initial 15% premium to post the bond and have then referred clients to Nexus to have a bracelet placed on them. This means that if an immigrant has an $18,000 bond, he will pay $2,250 to the bail bond company and $3,130 to Nexus. But this makes no sense. If an individual can contract with a bail bond company directly then it is likely because that person can provide collateral, so there is no need to secure the bond through a Nexus GPS. It is not clear whether bail bond companies receive any payment or commission from Nexus, but if they do then they have found a way to make even more money off unsuspecting and desperate clients.
- In certain cases, where clients were granted bond and were ordered to enroll in an Alternative to Detention (ATD) Program as a condition for release – meaning they had to wear a GPS device provided by BI Monitoring Operation (owned by the GEO Group) — they were told by Nexus that they also had to wear a second GPS provided by them. The issue is that they were never provided a GPS from Nexus, but they still had to pay $320 a month, after a $100 “discount” for already having an ISAP GPS. If Nexus’ claim that “ICE does not share supervision information with Nexus and Nexus does not share supervision information with ICE” is true, how could Nexus charge for monitoring that was only done by ICE if Nexus and ICE were in fact not sharing information? But more importantly, how is it that none of the agencies that “investigated” Nexus in 2013 brought charges against the company? Several incident reports were filed in Fairfax County alone, yet the Virginia Commonwealth Attorney refused to file charges unless the GPS devices were “not functioning”. But, in some cases this element couldn’t be established simply because these clients were never provided with a GPS device.
- Nexus charges an initial nonrefundable assessment fee, usually $600 (Page 5). The fee is waived upon release and credited to the first month lease and activation fee, so when Nexus says that the first month is ‘free’ it really isn’t. If the detainee is not released, then Nexus makes their “report(s)” available for presentation at Immigration Bond hearings. In other words, they act as a private pre-trial services type of agency, draft a report and hand it over to the immigrant’s family, who many times are convinced this report will help secure the release of their loved one. But Nexus does not play a role in release determinations, as far as I can tell, and I could not find a copy of the type of report Nexus provides the families or the court.
- Nexus has encouraged clients to fire their attorneys and hire Nexus recommended attorneys. The company recently expanded Nexus Caridades, a non-profit providing free legal services for those who qualify. While not illegal, this raises even more red flags. One can see how this may create conflicts of interest. Clients of Nexus have complained about the payments, the bracelet, and the service to their attorneys, and in some cases attorneys have removed the GPS devices and marched into Nexus’s office to return the device and inform them that the client will no longer make the payments. I could not find any evidence that Nexus has retaliated against those who are represented by private counsel. But what happens if the client is represented by one of Nexus’s attorneys? Would they do the same? Would they contact the attorney general when their clients are paying for a device they never received? I think the answer is obvious.
- If an immigrant gets released and decides to post a house as collateral, they must provide Nexus with a copy of the deed, the mortgage and an appraisal. During the period the proceedings last, the house “belongs” to Nexus. If anything happens and the immigrant who was bonded out by Nexus fails to show up to court, Nexus will not enforce a lien on the house for the bond amount alone, as most bond companies would. Instead Nexus takes the whole house, as explained by one of its agents. When I tried to clarify this point, and reminded her that I was inquiring about a $15,000 bond, I was told this was correct, they take the whole house as compensation for the “risk” they were undertaking and because they have to pay the full amount of the bond to the bond company.
So what can we do?
Under Virginia law, the Commonwealth Attorney General did not think that any of what I just described constituted fraud. However under California law, “actual fraud” consists of “the suggestion, as a fact, of that which is not true, by one who does not believe it to be true [and] a promise made without any intention of performing it” and “undue influence” is described as “suggestion, as a fact, of that which is not true, by one who does not believe it to be true,” (§§ 1172, 1175). So take for instance, telling a desperate detainee or his family that unless they contract with Nexus their loved one will stay in detention—this is not true and Nexus knows that; or telling them that not complying with Nexus will cause the judge to revoke the bond.
But some will say, “the client should’ve just read the contract”. The contract is in English, but a lot of people who contract with Nexus are recently arrived immigrants who do not speak English. Under California Law, as amended in 2014, Cal. Civ. Code §1812.623(a) seems to apply to the kind of GPS tracking devices used by Nexus, or at least one can argue it should. If that is so, then Nexus, when doing business in California, must provide a written agreement “in the same language as principally used in any oral sales presentation or negotiations leading to the execution of the agreement.” The languages include, because of the demographics in California, Spanish, Chinese, Tagalog, Vietnamese, and Korean. The copies of Nexus contracts I was able to obtain include one single page in Spanish, out of thirty-three pages (Page 6). The quality of translation is terrible to say the least; it looks as if someone used Google translate to try to translate the English version. I am a fluent Spanish speaker and I could not decipher half of what was written in the “Spanish” version. Under California law, a consumer is entitled to remedies, including actual damages; consumer’s reasonable attorney’s fees and court costs; and exemplary damages, in the amount the court deems proper. Cal. Civ. Code §1812.636(a)
If Nexus isn’t committing fraud, they are definitely walking a very thin line. I would be surprised if they could sustain these practices, although the reality is that Nexus found the perfect community to defraud. A lot of immigrants are afraid to come forward, and even when they do, no one seems to do anything, at least not in Virginia.