Freed but not free
Background & the Need for this Project
In May 2011, the White House released a report titled, “Building a 21st Century Immigration System.” In recognition of the need to balance the valuable economic contributions made by immigrants with the need to secure the nation’s borders, the Obama Administration detailed its “blueprint” to remedy issues related to unlawful immigration as well as to strengthen the economy. The document also included other proposals for change, such as creating a more humane immigration system, providing clearer compliance guidance, and improving the immigration court system. Among its many outlined solutions, the Obama Administration made clear its desire to remedy critical detention issues, including expanding the capacity of alternative to detention (ATD) programs. As the use of ATD programs increases, the need to examine such programs to ensure they are being carried out fairly and effectively also becomes greater.
As set forth in further detail in the report, immigration detention is costly, and it is unnecessary except in rare cases. For this reason, many advocates have called for an increase in alternatives to detention. Despite the proven effectiveness of many alternatives to detention, as this report makes clear, the capacity of the current ATD system is insufficient. At present, many individuals who are released from detention are placed on an Order of Release on Recognizance (ROR) or an Order of Supervision (OSUP), under which participants are required to check in periodically with Immigration and Customs Enforcement (ICE), among other requirements. Some of those individuals are subject to the Intensive Supervision Appearance Program (ISAP), which includes an electronic monitoring component and is administered by a private company.
This report attempts to examine the use, enforcement, restrictions, and human impact of the existing ATD programs in New Jersey and nationally. For the thousands of individuals that ICE places on supervisory programs—many of whom have been determined to be neither a flight risk nor a danger to the community—ATD programs can be both liberating and debilitating. This report highlights the economic, psychological, emotional, and physical toll faced by individuals under ATD programs and proposes some recommendations for reform.
Summary of the Flaws in the Current System
- Despite their designation as “alternatives to detention,” many ATD programs are used on individuals who have been released from detention or who were never detained in the first place, rather than individuals who would otherwise be detained in a detention facility and for whom the government’s goals of ensuring compliance with removal orders and court appearances could be accomplished with alternative measures.
- ICE officers lack clear and up-to-date guidance with regards to current ATD programs. The lack of program enforcement guidelines and the sometimes random exercise of discretion have created the potential for abuse and the arbitrary placement of individuals into certain ATD programs.
- Insufficient information is being disseminated to the public regarding the placement, reporting, and restriction decisions affecting ATD program participants. No clear guidance or standardized assessment tool has been created by which program participants can confirm their reporting schedules or to aid individuals in proving their own compliance with the program requirements.
- There is an overarching need for consistency at check-ins. Some ATD participants have reported that they did not meet with the same officer every time they reported for a check-in. The lack of consistency at check-ins creates uncertainty amongst those placed in ATD programs and furthers the lack of transparency between ICE and its ATD program participants.
- The frequency, location, and duration of check-ins are financially burdensome. The frequent check-in requirements hinder individuals’ ability to maintain gainful employment. In addition to the subsequent loss of wages, there are financial expenses associated with traveling to the various check-ins. Those subject to ISAP face additional burdens because they are required to check in not only with ICE, but with its subcontractors.
- ATD program participants, particularly those placed on ankle monitors, have expressed feelings of being criminalized. Ankle monitors are also physically debilitating, due to their weight, and restrict the wearer’s travel.
- Because individuals who have been granted relief under the Convention Against Torture (CAT), Withholding of Removal, or Temporary Protected Status (TPS) are nonetheless technically subject to an order of removal, ICE has chosen to place some of those individuals under an OSUP. Given the past psychological and/or physical trauma experienced by many of these individuals, the placement of these individuals is often inhumane. Supervision of these individuals is also often unnecessary, given the low likelihood that they will be removed. Supervision of stateless individuals and others who are unlikely to be removed is similarly unnecessary.
Summary of Recommendations
- ICE should discontinue its use of private contractors in the administration of ATD programs in favor of community based models. The benefits of transitioning to community-based models include decreasing costs to the government; decreasing unnecessary burdens on program participants; increasing access to critical legal, medical, and social services for participants; and increasing compliance among program participants.
- The enforcement and implementation of the ATD programs should be more transparent. Increased and consistent guidance for ICE officers, program participants, attorneys, and the public is required. The guidance should include a description of eligibility requirements for the ATD programs and clarify field terminology. The guidance should also clearly delineate check-in requirements for various classes of ATD participants.
- A clear grievance procedure for ATD program participants should be put in place and information about the grievance procedure disseminated to the public.
- In addition to the standard operating documentation, program participants and their attorneys should be provided with sufficient documentation proving their compliance with ATD program requirements.
- A more user-friendly system should be put in place, as the current ATD system does not take into account the human impact of compliance on program participants. Enforcement and Removal Operations (ERO) and ISAP offices should be located in safe areas easily accessible by public transportation. The wait times for program participants attending checkins should be shortened. A specific case load should be assigned to each ICE officer on check-in duty. Interpreters for a wider range of languages should be provided at check-in offices.
- Due to backlogs in the immigration court system, individuals are often subject to ROR orders for lengthy periods of time. We recommend that ATD program participants’ cases receive higher priority in the immigration court system than they currently receive, so that individuals are subject to the burdensome requirements of ROR orders for a shorter period of time.
- Although, given the problems outlined above, the authors do not condone the use of ankle monitors, to the extent they are currently being used, they should be considered custody for immigration detention purposes, and, as such, a viable alternative to detention even for those subject to mandatory detention under the Immigration and Nationality Act (INA).
- Ultimately, Congress should make clear that ATD programs should be used as true alternatives to detention by increasing funding for ATD programs while simultaneously decreasing funding for detention in detention facilities.