ICE Report: 'Alternatives to Detention' Don't Work

By Andrew R. Arthur on December 16, 2019

In my last post, I discussed most of the top-line findings from the recent "U.S. Immigration and Customs Enforcement [ICE] Fiscal Year 2019 Enforcement and Removal Operations [ERO] Report". Long-story short: ICE's ability to perform interior enforcement in FY 2019 was significantly impeded by its need to respond to the massive influx of aliens encountered by U.S. Customs and Border Protection at the Southwest border, and by an increase in sanctuary policies. I omitted the report's findings about so-called "alternatives to detention" (ATD). Basically, they don't work.

The section of the report relating to ATD begins by explaining what it is: "ICE's [ATD] program uses technology and case management to monitor aliens' court appearances and compliance with release conditions while their removal proceedings are pending on the non-detained immigration court docket."

The Center has previously explained the limitations of the program:

ATD is, on a daily basis, cheaper than detention, but because ATD participants are placed into the "non-detained" docket of the immigration courts (as opposed to the significantly faster hearings that aliens receive on the detained docket), those savings may be wiped out over the course of two, three, or four years on the program while aliens await the docketing and conclusion of their cases.


Long-term data do not conclusively establish the value of the programs in actually ensuring removal from the United States of ATD participants once they have been ordered removed. [Emphasis added.]

The report echoes the highlighted excerpt, above: "ATD is not a substitute for detention, but instead complements immigration enforcement efforts by offering increased supervision for a small subset of eligible aliens who are not currently in ICE detention."

That doesn't sound so bad at first blush, but note the introductory statement that "ATD is not a substitute for detention." That is simply a subtle reiteration of what most objective observers have known for some time. Detention ensures that an alien who is ordered removed is actually removed, without ERO having to go out and arrest the alien. ATD (which is essentially a monitoring program as the first excerpt above makes clear) does not.

In particular, ATD does little to prevent aliens from absconding, let alone to ensure that an alien shows up for removal, as the report explains when it later modifies the complementary nature of ATD: "[W]hile ATD can complement other immigration enforcement efforts when used appropriately on a vetted and monitored population of participants, the program was not designed to facilitate ERO's mission of removing aliens with final orders." (Emphasis added.)

I am not sure what "other immigration enforcement efforts" ERO is referencing here, but frankly, "removing aliens with final orders" is the ultimate one, both temporally and in order of precedence. As Barbara Jordan, then-chairwoman of the Clinton-era Commission on Immigration Reform, explained more than two decades ago: "The top priorities for detention and removal, of course, are criminal aliens. But for the system to be credible, people actually have to be deported at the end of the process." (Emphasis added.) ICE can do all the enforcement it wants, but if aliens under a final order of removal are not ultimately removed, the whole system is a sham.

And, as noted, ATD is ineffective at preventing aliens from absconding. The most damning extrinsic proof of this is found in CNN's reporting on the April 16, 2019, "Final Emergency Interim Report" from the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel, which I referenced in my last post.

As CNN explained, the panel recommended that: "DHS ... should be given discretion to detain a close relative with a non-parent family member when this is in the best interest of the child."

The outlet then asked Karen Tandy, the chairwoman of that panel, whether "the council considered alternatives to detention, rather than changes to the law." Tandy responded that the group "'spent a lot of time on it' but found it impractical," explaining: "In common parlance, we're talking about ankle bracelets, and we found at bus station [sic], there are overflowing bins of ankle bracelets that have been cut off."

The report reinforced Tandy's findings, noting that ATD was particularly ineffective when used to monitor released family units, which constituted 64.5 percent of all aliens apprehended by the Border Patrol along the Southwest border in FY 2019.

As the report explains:

While ERO has expanded its use of ATD from approximately 23,000 participants in FY 2014 to 96,000 as of the end of FY 2019, this expansion has come with a number of challenges, including high levels of absconders among recently enrolled family units. In FY 2019, the absconder rate for family units was 26.9 percent, more than double the 12.3 percent absconder rate for non-family unit participants, demonstrating the growing challenges such enrollments create for immigration enforcement. [Emphasis added.]

In this context, the absconder rate was determined by examining "the overall number of aliens who concluded the ATD program in a given time period ('overall terminations'), and the number of those terminations which occurred due to a participant absconding." In other words, when it came to family units, more than a quarter "terminat[ed]" the ATD program by disappearing.

Given the large size of this population as a whole, that is a significant failure of the monitoring program, providing support for the CBP Families and Children Care Panel's conclusion that Congress should give DHS "discretion to detain a close relative with a non-parent family member when this is in the best interest of the child."

Of course, this Congress (and in particular the Democrat-controlled House of Representatives) has no plans to do any such thing. In fact, as my former colleague Matt Sussis noted in February, the latest government funding bill actually increases funding for ATD while restricting detention. In particular, he reported that "the bill expands the ATD programs to 100,000 participants from 82,000, including over $40 million for 'family case management' to keep tabs on aliens who don't immediately abscond (as many do), but does not include money to actually find and remove those who do abscond." One would almost think that they set up the plan to fail.

And, almost as if following up on Sussis' statements, the report makes clear:

ERO lacks sufficient resources to keep all current [ATD] participants enrolled through the pendency of their proceedings, or to locate and arrest the significant number of participants who abscond, problems which will only be exacerbated by enrolling greater numbers of participants without the addition of enforcement resources. While ERO has continued to expand the use of ATD to monitor the non-detained population in FY 2019, the program will need to be further resourced in order to appropriately monitor participants, including through the addition of officers who can locate, arrest, and remove those who fail to adhere to conditions of enrollment.

It concludes with the obvious: "Finally, while additional resources would improve the efficacy of ATD at current levels of enrollment, ERO notes that the program is not a viable solution for addressing the magnitude of cases on the non-detained docket, which surpassed 3.2 million in FY 2019."

Put another way, ATD is ineffective and underfunded, not unlike the Woody Allen joke in Annie Hall about the resort where the food is terrible and the portions are too small. Given this, the arbitrary restrictions that courts have placed on ICE detention of family units, and the limited detention space and resources that are available to ERO, it is no wonder that ICE reports there were 595,430 fugitive aliens at the end of FY 2019.

I would have been more blunt and direct than ICE was about the failures and limitations of ATD, but then the agency will have to ask Congress for additional funding and therefore must be circumspect in its analysis, lest it perturb the appropriators who hold its purse strings. Respectfully, however, it is the American people who should be disturbed by findings in the agency's report.