"Punishing" Apprehended Illegal Aliens with Alternatives to Detention?

By Dan Cadman on May 22, 2017

Conservative Review has published an article, "Weak border bill threatens to undermine GOP's wall promises". The bill in question is being put together for introduction in both chambers of Congress by Sen. John Cornyn and Rep. Mike McCaul respectively. As one can gather from the title of CR's article, it is not necessarily a bill those who believe in responsible immigration control and enforcement can look toward with any pleasure.

The piece quotes representatives from various immigration enforcement advocacy groups, including the Center's Jessica Vaughan, as being under-enthused but, more significantly, suspicious that the paper-thin provisions for enforcement contained in the bill as presently drafted will in the end be nothing more than a fig leaf behind which to once again mount an amnesty effort.

This is of deep concern, particularly in light of at least a few signs that could be interpreted as White House vacillation on the key issue of immigration enforcement that helped propel Donald Trump to the presidency.

But the part of the article that particularly caught my attention, and my ire, was this:

A headline at Newsweek points out that the goal is to "punish border crossers," while another story at left-leaning Vocativ fixates itself on one proposed provision of the legislation that would fit illegals under deportation proceedings with ankle bracelets.

"It's absolutely disgusting," immigration attorney David Leopold tells Vocativ. "It smacks of darkest days of the 20th century and some of the world's most oppressive regimes. These lawmakers should be ashamed of themselves."

David Leopold, a former head of the American Immigration Lawyers Association (AILA), is frequently a go-to guy for the liberal and progressive media in search of notable quotables. "Disgusting"? Hardly. What Mr. Leopold is complaining about is a plan under which apprehended aliens would be subject to electronic monitoring in lieu of being detained while they await their removal proceedings. Sure sounds like the better bargain to me, especially from an alien's point of view.

Of course Leopold, who makes his living representing aliens, would object to such a scheme simply because he much prefers the way things were for the eight years of the Obama administration, when release of aliens on their own recognizance — a kind of honor system — became very much the norm, and even alien criminals were often released from detention via a program known as "alternatives to detention" (ATD), which includes the kind of electronic monitoring ankle bracelet Mr. Leopold finds so repugnant.

The problem with releasing aliens on their own recognizance is that all too often, they fail to show up for their appointed date at the immigration court. In March of this year CIS Fellow Mark Metcalf, a former immigration judge, published "Courting Disaster: Absent attendance and absent enforcement in America's immigration courts", in which he found, among other things, that "[o]ver the last 20 years, 37 percent of all aliens free pending trial failed to appear for their hearings." Right now, there are a million aliens, give-or-take, walking the streets of America who are fugitives because they either failed to appear for their court-ordered removal proceedings, or are under final orders of removal that can't and won't be executed until they can be found. These figures alone make the case that the present honor system is both a sham and a shambles.

Even so, I'm not persuaded that "ankle bracelets" — or other forms of ATD either, for that matter — are a logical and responsible solution for the vast majority of aliens, but certainly not because I agree with Mr. Leopold that they are "disgusting". Rather, it is that monitoring programs are extremely expensive to maintain, particularly when they are farmed out to private contractors, which is the norm with many government departments and agencies, including Immigration and Customs Enforcement (ICE).

Furthermore, both the Government Accountability Office and the Department of Homeland Security's Office of Inspector General have examined ICE's ATD program and found it to be seriously flawed (see here and here). So flawed, in fact, that it was often impossible to tell whether a case had been closed out of the ATD program because it was a success and the alien either removed or granted relief from deportation; or, alternately, because the alien had broken the conditions of his participation in the program (such as cutting off the electronic bracelet) and fled, leading to statistical "closure" for ATD program purposes.

There is also another problem with releasing aliens, though, whether it is on their own recognizance or via the various ATD programs. When either happens, the aliens are placed into the non-detained (versus the fast-track detained) docket of the immigration courts. The non-detained docket is seriously clogged. According to Syracuse University's Transactional Records Access Clearinghouse (TRAC), despite the hiring of 79 new immigration judges:

As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. ... On average individuals have currently been waiting 670 days, and may have to wait much longer before their cases will be heard. Nine courts that currently account for a quarter of this backlog require some individuals to wait for more than four additional years from now before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some individuals waiting for more than five additional years — as much as 1,908 days longer — for their July 21, 2022, hearing date. (Emphasis added.)

How, one wonders, is effective immigration enforcement well served by a system that permits the bulk of apprehended illegal aliens to remain in the United States for anywhere from two to five years while awaiting the start of their removal court hearings? The ankle bracelet proposal would not alter that dynamic, it would perpetuate it, albeit using new (and very expensive) electronic means.

The ankle bracelet proposal alone, if it is in fact a part of the still-developing border security bill, suggests to me that the entire bill may be equally flawed and will merit close examination to detect other such half-measures that do little or nothing to actually provide Americans with the border security that they deserve, and that they demanded when they voted in the last election.