"Alternatives to Detention" (ATD) is the collective name given to a group of programs that act as substitutes to the detention of aliens who are in violation of immigration laws, and who are awaiting the outcome of removal proceedings. (See the separate briefing document for additional details about the legal and operational bases of immigration detention.)
- ATD programs have been instituted as a means of maintaining contact with, and track of, aliens who are released for lack of bed space.
- ATD is still very much an experiment-in-the-making, and is available only to a select number of individuals.
- 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.
- ATD programs have evolved in sophistication and success, as a result of various critical government watchdog reports, although the fact that the programs are small and careful in their selection of candidates may lead to unrealistic expectations that they can be used for hundreds of thousands of aliens who are in proceedings, and still maintain program success rates.
- 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.
Section 236 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1226, authorizes the arrest and detention of aliens in the U.S. in violation of law. That provision also permits the posting of bond or release on conditional parole. There is no specific statutory authority for ATD programs, which have evolved in large measure as a means of maintaining contact with, and a measure of control over, aliens placed into proceedings who are released for lack of bed space or due to personal circumstances (such as adult family members who are caregivers of minor children).
ATD programs, sometimes known as Intensive Supervision Appearance Programs (ISAP), have several permutations. Generally, they may be thought of as the immigration equivalent of periodic reporting to a probation officer. Such reporting may be in person; via smartphone, which allows gathering of GPS coordinates of the alien caller to determine whether he remains in his permitted geographical area; via electronic ankle bracelets; some combination of these things. ATD programs are contracted out by U.S. Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS) agency charged with docket supervision of aliens in removal proceedings. Thus, the "probation officer" is not a government employee.
Because ATD participants are on the non-detained docket, the duration of reporting can be for long periods of time due to backlogs of more than 764,000 cases currently pending in the immigration courts. If the alien violates the conditions of his release, theoretically he may be removed from the program and placed back into detention. There is discretion in whether and when this occurs, however, because such decisions are made on a field-office-by-field-office basis with no hard and fast rules ever having been articulated by ICE headquarters. This is also true as to the level of oversight exercised by ICE field offices over the local offices of the private corporations that enjoy ATD contracts within their jurisdiction.
There is also an anomaly in the release of aliens into ATD programs, in that they are not granted permission to work in the United States, and yet without such employment authorization they cannot sustain themselves (and their minor family members for adult caregivers) because they are ineligible under federal law to receive entitlement benefits. The result is that both the government and its ATD contractors turn a blind eye toward employment eligibility violations of Section 274A of the INA, 8 U.S.C. 1324a.
Despite government watchdog analyses over a period of time that have criticized the efficacy of various parts of ATD, such as the DHS Inspector General (IG) report of February 2015, alien advocacy groups have seized on the cost savings of ATD — and selected aspects of its "success" — to argue that detention of aliens is costly, unnecessary and inhumane. For instance, an article in Vox asserted:
Instead of keeping children in detention centers with their parents, families in certain cities were released and monitored by social workers, who helped them find lawyers, housing, and transportation, and made sure they attended their court hearings.
It seemed to work pretty well, according to ICE, though officers never had more than 1,600 people enrolled in the program during the two years it existed (compared to more than 350,000 immigrants who were held in ICE detention centers just in 2016).
The contractor that ran the program said that 99 percent of participants "successfully attended their court appearances and ICE check-ins." That included the 15 families who were ultimately deported.
But in June 2017, after Trump took office, DHS shuttered the program, without explanation.
The problem is that this is neither a fully informed nor accurate view. The statistics cited come primarily from the redacted public version of a November 2018 Homeland Security IG report, which at the request of a member of Congress narrowly examined whether ICE had awarded its family case management program contract to a particular bidder. The report offered a few snippets that, examined without context, seem to support ATD as the "magic beans" solution instead of detention. Yet context matters.
Consider, for instance, that according to the report, it cost ICE $17.5 million to contract out supervision of 781 family units in the initial pilot of the program. That amounts to a per-unit cost of just over $22,407, a substantial sum of taxpayer money. Multiply that figure by a factor of 100 ($2,240,700) and you still haven’t scratched the surface of the number of family units who would need to be housed under such a scheme.
Also not factored into the "pennies-on-the-dollar" equation put forward by ATD advocates is the cost to the government for its agents to conduct extensive "fugitive apprehension" investigations for each and every alien who flees the program rather than report for removal if asylum or other forms of relief are denied by an immigration judge. Clearly, this expense is not present when an alien is detained for the duration of his hearing and has no choice about being taken to his removal flight if/when ordered.
Then there is the ostensible "99 percent" success rate touted by advocates citing the redacted IG report. The duration of the pilot was considerably shorter than the extended time frame of the immigration courts' non-detained docket. In other words, the incredibly high percentage rate of success only covered a very short portion of the time needed to adjudicate these aliens' removal and asylum hearings. We don't know, then, whether or not they did — or will — actually show up for removal if or when ordered by an immigration judge. It's one thing to continue reporting to your assigned contracting company employee as long as there is hope of relief from deportation, but when that hope evaporates, it's another thing entirely to report for removal. Are those aliens really going to stick around at that juncture and voluntarily show up for their repatriation flight? It's doubtful. Statistically, the government assesses the no-show rate, including for families and children, as exceedingly high.
Examined in this light, the 99 percent figure is worse than meaningless because it is misleading. It isn't, after all, just reporting for court that counts. If the final outcome is an order of deportation, and if aliens and their families don't report for removal, then the whole process becomes a hamster-on-the-wheel exercise, because absent the ability to enforce the orders of the immigration courts, it is a charade.
Given that there will always be a limited amount of detention space available due to funding constraints (ICE is generally funded at a 35,000–40,000 beds pace level), there is no doubt that there is a continued future for ATD. The challenges are these:
- First, ICE headquarters must intercede and establish bright-line rules that override field office discretion about when to declare an alien in violation of the conditions of his release.
- Second and similarly, ICE HQ needs to spend significantly more time considering the data available, and consulting experts, in order to determine which classes of aliens are the best fit for ATD programs, since clearly not every alien in proceedings is a good fit for some kind of conditional release.
- Third, significant disincentives must be established by law or policy that act decisively to discourage aliens remaining in ATD up until the point at which they are foreclosed from relief and a removal order is issued, after which they flee, having worked the system for as long as they can.
- Fourth and finally, perhaps the government should also consider whether incentives can be created that would encourage aliens within ATD programs to comply with orders of removal — for instance by providing that some of the usual legal blocks to reentry by previously deported aliens are removed, so as to give them hope of a legal reentry in the future. This would of course require legislation amending the INA as it now exists.
What is clear is that, in their current configurations, ATD programs may augment detention, but are by no means a substitute.