Before immigration agents came to his door last February as he got ready for work, Johnny Terrones’ construction job paid enough to keep his girlfriend, her two youngest children and him out of the cold New Jersey winter.

Nine months later, fighting deportation and locked up in the Bergen County Jail, Terrones exemplifies conflicting policies of the Obama presidency that affect asylum seekers, immigrants and legal residents, and the challenges facing immigration courts that could likely grow under the next administration.

Also frequently affected are immigrants’ U.S. citizen relatives and loved ones. Terrones’ girlfriend, a U.S. citizen, lives in a homeless shelter after she was evicted from their Paterson, New Jersey, apartment when the rent money dried up along with Terrones’ income. Her two children, ages 6 and 3 and also U.S. citizens, live with an aunt. His old construction job awaits if he’s released.

The 53-year-old U.S. resident had lived in the New York area for more than three decades, legally for the past 26 years, according to federal court records and interviews. As a single parent raising three U.S. citizen children of his own, he’d faced hard times and battled addiction.

Two misdemeanor drug busts on his record from 2014 and 2003 had caught the attention of Immigration and Customs Enforcement. Federal agents arrested Terrones during an early morning raid on Feb. 17. On June 30, an immigration judge ordered him deported to his native Peru. He appealed.

At a bond hearing in August, an immigration judge found that Terrones didn’t pose a threat to public safety or risk becoming a fugitive, even after he was ordered deported. The judge still set his bond at $15,000. The bond amount later dropped to $6,000, but without a job, that much money is out of reach for Terrones. He is not alone.

Terrones is one of hundreds and possibly thousands in the country sitting in immigration detention because they cannot afford to post bond. Only about 4 percent of the more than 500,000 pending cases that have stacked up in the nation’s clogged immigration courts involve detained immigrants, according to current figures provided by the Justice Department. But with President-elect Donald Trump’s pledge to deport or lock up millions of immigrants with criminal records during his presidency the backlog could grow much bigger.

Terrones is also among a handful of immigrants who are suing the government in federal court for their release while also aiming to change how immigration judges set bond. Absent any action in the waning days of the Obama administration and unlikely in a Trump White House, the issue of immigration bond reform now rests with the courts.

Aside from the recent lawsuits, the U.S. Supreme Court will hear arguments on Nov. 30 about whether certain criminal and terrorist immigrants, among others subject to mandatory detention, may get a bond hearing after six months in jail.

Terrones could not be reached from jail for comment. But his attorneys remain optimistic that the judges in his federal lawsuit – and another like it they filed in New York – will order the government to not keep immigrants locked up simply because they’re poor, just as a federal judge did recently in Los Angeles. In a twist, Terrones and others are using the Justice Department’s own argument that excessive bail is unconstitutional.

‘The great irony’

Over the past 20 months, the U.S. Justice Department has railed against scenarios like the one Terrones is in as officials have championed bail reform, but in a different setting – criminal courts.

Justice officials have waded into federal lawsuits challenging how state and local judges set bond. They have lectured in public to lawyers and judges. They have supported efforts to reform cash bail in states, as Reveal from The Center of Investigative Reporting reported last month. And they have warned that excessive bond is out of tune with the U.S. Constitution, can wreak havoc on the poor and may spur some to forfeit their rights.

Yet, government attorneys have dug in against those same arguments posed by indigent immigrants like Terrones who are locked up while they wait for immigration judges – who work for the Justice Department – to decide their fate. In doing so, the Obama administration has put on full display the Justice Department’s contradictory stance.

Following a surge this fall in migrants caught at the border, immigration officials currently detain about 41,000 immigrants, well above the daily average of 34,000 required by law. The Department of Homeland Security, which oversees the immigration enforcement agency, has scrambled to house those challenging deportation or seeking asylum.

With the nation’s immigration detention system bursting at the seams, Michel Tan, an attorney with the American Civil Liberties Union, said that the practice of jailing people on bond they cannot afford is out of control.

“The Department of Justice has really been out in front on criminal bail reform and taken positions in cases around the country saying it’s unconstitutional to lock people up simply because they’re poor,” said Tan, who represents two immigrants in their federal lawsuit in Los Angeles. “And the great irony here is that immigration judges have been doing just that around the country.”

U.S. Immigration and Customs Enforcement, which typically makes bond recommendations and argues for deportation in the immigration courts, and the Justice Department’s Executive Office for Immigration Review, which oversees immigration judges, both declined to comment, citing pending litigation. The Justice Department did not respond to a request for comment.

Languishing in lockup

U.S. District Judge Jesus Bernal on Nov. 10 issued a preliminary injunction, ordering immigration enforcement officials and judges operating in the Central District of California to adhere to the U.S. Constitution in setting bond. In his order, which also denied the government’s motion to dismiss the case, Bernal certified the case as a class-action lawsuit.

In that case, which the American Civil Liberties Union filed in April, two detained immigrants

argue that their constitutional rights were violated when immigration officials set bond beyond their means to pay. Both have since been released from detention after posting bond, but their immigration cases continue.

Cesar Matias, a 37-year-old Honduran national, languished in Southern California lockups for more than four years because he could not secure a $3,000 bond as his asylum claim bounced between immigration and appellate courts. He was one of the 119 immigrants incarcerated in the Los Angeles area because they could not post bond, according to October 2015 immigration detention records obtained by the American Civil Liberties Union.

Xochitl Hernandez, a 40-year-old native of Mexico who has five U.S.-born children, remained locked up for more than six months because she couldn’t afford to pay a $60,000 bond following her February 2016 arrest by the Los Angeles Police Department and immigration agents.

Bernal ordered immigration enforcement officials and judges to consider whether a detainee can afford to post bond, not to set bond higher than necessary to ensure that the immigrant returns to court and consider alternatives to detention.

Immigration law prohibits many detained immigrants from getting bond, including those convicted of drug trafficking, murder or rape, among other crimes. Prolonged detention in immigration courts is the issue the U.S. Supreme Court will weigh later this month.

In that case, Jennings v. Rodriguez, which stems from a U.S. District Court decision in Los Angeles upheld by the 9th U.S. Circuit Court of Appeals, the government challenges the ruling that detainees are entitled to a bond hearing if held for six months.

Alejandro Rodriguez, who came to the United States from Mexico when he was 1, challenged immigration officials in 2007 over his prolonged detention of more than three years without a bond hearing. Immigration officials wanted to deport him for two offenses: joyriding when he was 19 and drug possession when he was 24, according to the ACLU. He sued, and was eventually released. He’s since won his immigration case and is a legal resident. But his lawsuit expanded to cover many more immigrants, arguing that they should be entitled to a bond hearing if they’ve been held longer than six months.

A critical factor

Immigration bonds usually start around $1,500, but can range from a few thousand to tens of thousands of dollars. In extreme cases, immigration bond, which is paid to Immigration and Customs Enforcement, has been set as high as $2.5 million. The supervision of immigrants released on bond has become big business for some.

If a bond is breached, Immigration and Customs Enforcement keeps the money, which it uses to offset detention costs. About 14 percent of people who posted bond absconded in 2015, according to an analysis of immigration court records by Syracuse University-based Transactional Records Access Clearinghouse.

In 2016, immigration judges nationwide received 63,308 requests for bond, and completed 61,918 bond hearings, a slight increase from the year before, according to Justice Department statistics provided to Reveal.

The most recent statistics on how many detained immigrants who couldn’t post bond were not immediately available. In cases completed in 2015, 13 percent of immigrants were granted bond remained locked up, down from 28 percent in 2011, according to the clearinghouse’s analysis.

Marlon Paz Nativi, a 21-year-old Guatemalan asylum seeker, is another immigrant who can’t afford his bond, according to a lawsuit filed in New York earlier this month.

Paz Nativi fled his home country after his 15-year-old brother was found dead in the street. The boy’s testimony had led to the homicide convictions of three Mara Salvatrucha gang members. The violent street gang struck back by shooting him in the head.

Facing threats himself, Paz Nativi escaped north, arriving on July 1 to the United States. He was soon detained. After an interview that concluded he had a credible fear of persecution in his home country, Paz Nativi asked for asylum, according to the lawsuit.

Four months after his detention in July, Paz Nativi had a bond hearing, where an immigration judge also concluded he was neither a threat nor a flight risk. The judge gave him a $20,000 bond, an amount he cannot pay. Like Terrones, he too remains locked up in the Bergen County Jail in New Jersey, and was not available for comment.

“Immigration judges in some parts of country will do exactly what the government asks, but in other cases will come to their own decision,” said Alina Das, an attorney representing Terrones and Paz Nativi in their respective lawsuits. “But to not consider what is a critical factor in so many of our clients’ cases is doubly upsetting.”

This story was edited by Jennifer LaFleur and copy edited by Nadia Wynter. Andrew Becker can be reached at abecker@revealnews.org. Follow him on Twitter:  @ABeckerCIR.

Andrew Becker is a reporter for Reveal, covering border, national and homeland security issues, as well as weapons and gun trafficking. He has focused on waste, fraud and abuse – with stories ranging from border corruption to the expanding use of drones and unmanned aerial vehicles, from the militarization of police to the intersection of politics and policy related to immigration, from terrorism to drug trafficking. Becker's reporting has appeared in The Washington Post, the Los Angeles Times, The New York Times, Newsweek/The Daily Beast and on National Public Radio and PBS/FRONTLINE, among others. He received a master's degree in journalism from UC Berkeley. Becker is based in Reveal's Emeryville, California, office.