Issues for Congress:
- Congress must consider whether funding alternatives to detention should continue in light of high absconding rates and harm to public safety;
- Congress must significantly increase funding for detention beds and support staff; and
- If Congress decides to continue funding detention alternatives, it should create significant criminal penalties for aliens who violate the terms of the program.
Fox News recently obtained a draft report on the U.S. Immigration and Customs Enforcement (ICE) Alternatives to Detention (ATD) program, also known as the Intensive Supervision Appearance Program (ISAP). Though unfinished, the information contained in this draft report provides transparency into a significant part of immigration enforcement, one that deserves greater attention as waves of illegal aliens enter the United States at an alarming pace. (To read a copy of the full report, see here.)
The Biden administration has significantly expanded the use of ATD, preferring to release illegal aliens into the interior of the United States over detaining them in an ICE detention facility during the pendency of their immigration court proceedings. Forms of ATD monitoring include GPS ankle bracelets, telephonic reporting where aliens are expected to call a case supervisor at designated times, and a cell phone application called SmartLINK, which started as a pilot program in 2018.
This draft report was requested by Congress many years back and has been circulated throughout ICE and DHS for review and edits for quite some time. Fox News reports it obtained this draft from a source within DHS, but it is important to understand that this draft appears to be current as of the first quarter of FY 2020 and has likely since been further edited with newer figures.
Does ISAP Advance ICE’s mission? As explained in the draft report, ISAP “uses case management and technology to monitor a small segment of individuals assigned to the non-detained docket.” The Biden administration’s budget describes the program as one that allows illegal aliens “to remain in their communities” — meaning American communities — rather than remain in detention while their case is pending. Put simply, an alternative to detention is simply a means to monitor a non-detained illegal alien until they abscond, are deported, or are given lawful status to remain in the United States.
This draft report notes that there are 1.6 million illegal aliens with pending immigration cases who are not detained. This data is from the first part of 2020, so the number is likely higher today. Of this, only a small portion of aliens are put on a form of monitoring, meaning that ICE is only keeping tabs on a limited number of individuals through the program.
While at ICE, I kept asking the following: “What is the value of releasing illegal aliens from detention and tracking such a small portion of those released?” The immediate answer I would often get was, “Well, monitoring a portion of released aliens is better than monitoring none of them.” The logic was that the agency can’t stop Congress from pouring taxpayer dollars into ISAP, and there are aliens who ICE will release for one reason or another (e.g., a court-ordered release or insufficient detention space), so the agency might as well slap a GPS bracelet on the ankles of released aliens and hope for the best. But my real question was: “How does this help ICE’s mission?” It was hard to get an answer to that basic question and the main response was that by tracking an alien, even if for a short period of time, ICE might be able to use that location data in the future should there be an urgent need to locate the alien; the logic was that even if the alien cut the bracelet after a month, it’s possible that the alien might still be in the general location of those last GPS pings. That’s not much of a benefit for a program costing tax-payers over a billion dollars.
Meanwhile, anti-enforcement groups are suing to limit how ICE and potentially other law enforcement agencies make use of that monitoring data. Depending on the outcome of that effort, it may be that ISAP’s value diminishes even further. At that point, it would become obvious to even the casual observer that Congress needs to reaffirm the importance of detention and consider reallocating funds used for ISAP to the detention bed fund. In this draft report, ICE explains that “ISAP is not and will never be a substitute for detention. The most effective means of ensuring an individual’s departure from the United States at the conclusion of immigration proceedings (if ordered removed by an immigration judge) is through the use of detention.” ICE concludes: “Detention is the only method that will ensure compliance with an order of removal.”
Numbers and Costs. As of this writing, there are 227,508 illegal aliens being monitored through ISAP and only 19,502 illegal aliens in detention. This is part of an ongoing, dramatic expansion of ISAP and a questionable use of resources. According to the draft report, in 2015 there were 48,845 illegal aliens being monitored through ISAP; in 2016, a total of 83,195 were in the program; in 2017, there were 105,722 in the program; in 2018 there were 139,082 in the program; and in 2019 there were 179,552 illegal aliens being monitored through the program. Prior to the pandemic outbreak, ICE was detaining approximately 50,000 illegal aliens.
The dramatic rise in the use of alternatives to detention is the result of increased funding from Congress, and increased illegal immigration. According to the draft report, in 2005 ICE spent just under $21 million on the program. In 2015, the agency spent just over $107 million on the program. In 2019, ICE spent nearly $259 million on the program. The Biden administration’s budget for 2023 includes a $77 million increase and notes that “the base for this program” is $440 million plus another $10.4 million for IT management.
Since 2005, taxpayers have spent over $1.46 billion on ISAP, according to the draft report. Whether this program is worth the cost must be considered in light of the findings contained in this report that raise serious questions about the program’s effectiveness and impact on public safety.
Thousands of Aliens Are Absconding from ATD. The effectiveness and value of ISAP is widely questioned within ICE, as this leaked draft report lays out. One of the reasons is that thousands of illegal aliens released on some form of monitoring routinely disappear into the country. According to this report, in FY 2019, “a total of 14,385 aliens absconded from the program”. That is a massive number and a strong indicator that ICE does not have the ability to determine which aliens are a flight risk, despite a screening process that occurs at the outset. The report does not indicate whether any of these aliens were subsequently located and detained and deported, but based on my experience I can say that it is highly likely most of these absconders remain at large within the United States.
The draft report also notes that between October 1, 2015, and June 30, 2020, a total of 40,300 illegal aliens monitored through ISAP have disappeared. The real outcome is actually much worse.
Congress is under the misimpression that aliens released from detention and monitored through ISAP show up to court hearings at a high rate. This is simply not true, as this draft report explains. For years, Congress has been told that somewhere above 90 percent of aliens monitored via ISAP show up to their immigration court proceedings. These are numbers that contractors and government bureaucrats have been pushing to make themselves look good, and to keep the federal contract money flowing, but the truth is quite disturbing. As this draft report explains, approximately 80 to 90 percent of aliens on ISAP eventually abscond if given enough time. As the report explains, the program “has historically only captured and reported court appearance data for the time period that the participant is in the program, which due to ICE practices ... is approximately 14 to 18 months out of an immigration court process that averages close to five years.”
In other words, ICE has been choosing to take aliens out of ISAP after about a year and a half based on the concept of good behavior (i.e., they showed up to one court hearing). The logic is that since ICE can only monitor so many people, the resources should be switched from people who have shown some compliance to people newly arriving across the border and those being newly released from detention. That small window of time — the 14 to 18 months — is the only period that Congress has been hearing about, which is largely meaningless when trying to assess the effectiveness of ISAP. Furthermore, only a portion of these aliens have been evaluated for court appearance rates. As the report explains, “ICE has tracked and reported court appearance for approximately 75 percent of aliens in ISAP, and cannot say that it is a representative sample of the total ISAP population.” Similarly, as noted in a Congressional Research Service report that evaluated the program, “data collection on court appearance rates was inconsistent and incomplete for over one-third of program participants.”
As explained in this draft report, court appearances are not tracked after an alien is released from ISAP, and because immigration cases generally do not conclude during a 14- to 18-month period, “any previous reporting on court appearances should be understood to be a snapshot of the first handful of cases an alien might have had scheduled during this narrow timeframe.”
In order to overcome these very significant flaws in reporting, ICE explains in this draft report that the agency “reviewed data of ISAP participants through the entirety of their respective immigration lifecycles”, which was “focused on aliens who ICE was able to determine were enrolled in ISAP for their entire immigration lifecycle, which ended with the alien being granted relief, ordered removed, or absconding”. Shockingly, ICE found that aliens participating in ISAP have absconded from the program “at an average of over 84 percent” when looking at FY 2015 through June 30, 2020. ICE explains further that “the population of aliens that has absconded and now considered to be fugitives is over 40,000 for just this time period.” ICE also notes that the “total number of absconders appears to be increasing rapidly”, explaining that in FY2019 alone, a “total of 14,385 aliens absconded from the program”, which, shockingly, represented an absconding rate of nearly 90 percent. Naturally, total numbers will go up as ICE enrolls more people into ISAP, but it is the rate of absconding that seriously calls into the question the value of offering illegal aliens an alternative to detention.
This lifecycle analysis indicates that most aliens allowed out of detention and placed on some form of monitoring will eventually abscond if given enough time. When illegal aliens determine that their case to remain in the United States is unlikely to be successful, or when illegal aliens decide that complying with ICE monitoring and showing up to court isn’t worth their time, they abscond. Though it’s not mentioned in this report, I can confirm that ICE officers routinely find GPS ankle bracelets that have been cut off and discarded.
In the draft report, ICE explains that these numbers “illustrate that alternatives to detention are not a replacement for detention and that continuing to release aliens prior to the conclusion of their immigration case will not be successful in creating compliance with the law.” The agency continued, “Without corresponding increases in fugitive operations programs to apply consequences to program violators, these releases strain existing ICE resources.”
Put differently, in light of ICE’s insufficient resources and current statutory law, continued use of ISAP will inevitably result in continued growth of the illegal alien population. For this reason, ICE concludes in the draft report that, “The only effective means of ensuring compliance with a court order, to include an individual’s departure from the United States at their end of their immigration proceedings (if ordered removed by an immigration judge), is through the use of detention.”
Thousands of Aliens Released on ATD Are Committing Crimes. Before an alien is placed on some form of ISAP monitoring and released from detention, ICE conducts a screening process to determine whether the person is a flight risk or a public safety risk. As the lifecycle data indicate, a large majority of illegal aliens placed in ISAP end up being flight risks. But it also turns out that ICE does not have the capacity to determine which aliens pose a threat to public safety.
According to the draft report, since ISAP began “over 21,000 aliens enrolled in ISAP have been subsequently convicted or charged for a criminal act.” The report notes that this is a measure of individuals and that the total number of crimes committed by these individuals may be higher. ICE explains, “These crimes have created victims, and all victimization indicated here would not have occurred had the alien remained in detention.”
The report notes that aliens who abscond from ISAP and later commit crimes were not counted in this total. In other words, this criminality data is made up of crimes committed by released aliens who were still being monitored in ISAP at the time the crime was committed. There may be many more victims, not counted here, who have been harmed by aliens released from detention who absconded from ISAP; these victims would not have been victimized had the aliens remained in detention.
Turning ISAP into a Social Service Program. Congress reaffirming the importance of detention over ISAP’s monitored releases is important for at least two reasons. First, there is no serious legal repercussion for aliens who violate the terms of supervised release. As an ICE officer recently pointed out to me, an alien who cuts off a GPS monitor or who otherwise violates the terms of release under ISAP is difficult to locate and not an arrest priority under the Biden administration; if Congress were to create serious criminal consequences for ISAP violations, that might give the program some credibility.
The second reason Congress should reaffirm the importance of detention over marginally monitored releases is because anti-enforcement activists within the Biden administration are working to transform ISAP into a social services program. This stealthy effort is well underway and few in Congress are aware of what the White House is cooking up.
It’s fair to say that advocates on all sides of the debate — those wanting more enforcement and those wanting less enforcement — are generally skeptical of ISAP. Supporters of the nation’s sovereignty generally argue that illegal aliens should be detained at a greater rate, while the anti-enforcement crowd opposes even the use of GPS ankle monitors or any other form of tracking. Of course, it’s important to remember that it was the advocates for looser enforcement who first started pushing GPS monitors years ago as a means to reduce detention. Now that they've gotten what they wanted, they’re moving the goal posts and claiming that GPS monitoring is inhumane. Their obvious agenda is no detention, no monitoring, no enforcement (i.e., open borders).
Still, Congress has allocated an increased amount of tax dollars for ISAP and the Biden administration is asking for more. There’s a reason for this and it’s important to be aware that the anti-enforcement crowd is busily working to transform ISAP into more of a “case management” program that offers increased “wraparound services” — i.e., legal assistance and social services — to more and more illegal aliens.
In other words, it’s important to think of ISAP not as an enforcement-related tracking program as originally proposed, but as the first step in turning DHS into a social services-type entity that assists illegal aliens in their effort to remain in the United States illegally. This is consistent with the Biden administration forcing the Border Patrol and ICE officers to “process” aliens into the country. The transformation is happening in plain sight and Congress should put an end to it.
One effort underway involves taking ISAP out of ICE altogether. Since the loose-borders crowd does not view ISAP as a law enforcement tool, they don’t want officers with arrest authority to be part of the program. The Biden administration has been working with activist groups and last year published a Request For Information (RFI) aimed at largely removing a law-enforcement-focused federal contractor — known as the GEO Group — from the alien-tracking business. The RFI, available on SAM.gov, includes the following language:
National Case Management Program: Family Units, Young Adults, and Vulnerable Populations
This RFI seeks innovative approaches to partnering with ICE to establish a program for family units and individuals to provide case management services, ensure participants are aware of their legal rights and obligations, and connect participants with appropriate community services. Services provided to these vulnerable immigrant populations should include, but are not limited to:
- Case management assistance to ensure stability and safety during immigration proceedings
- Implementing an enrollment process for program participants
- Trafficking and safety screenings
- Maintaining accurate addresses for program participants
- Confirming enrollment into school for school aged child(ren), and providing support as needed
- Informing program participants of their legal rights, responsibilities, and obligations
- Providing program participants with access to a network of community resources and provide referrals as appropriate
- Providing age appropriate and culturally sensitive services
- Providing or connecting participants with legal information and free or low cost legal representation
- Provide all services in a language that the participant understands
- For individuals with final orders or terminated proceedings, providing pre-departure counseling/assistance, and referrals to reintegration services.
- Providing program participants with access and referral to a network of community resources to include medical, mental health, trauma informed care, community organizations, education resources, and other services as indicated.
We estimate approximately 100,000 people may be served by this program annually in the following service areas: Boston, Orlando, San Antonio, El Paso, Houston, New York, Phoenix, Dallas, San Diego, Los Angeles, Chicago, Miami, Philadelphia, Denver, Detroit, Washington, DC, and Baltimore.
The GEO Group does not have the capacity to offer the types of services required by this proposal (such as providing aliens with legal representation) and that’s exactly the point. The goal of this RFI is to transform ISAP into an illegal alien advocacy entity by creating parameters that result in millions of taxpayer dollars flowing to certain NGOs with an ideological bent similar to that of the Biden administration. Recall that the DHS Inspector General is currently investigating the Biden administration for its decision to give two no-bid federal contracts — one through ICE for $87 million and another through Health and Human Services for $579 million — to an NGO called Endeavors, which offers “migrant services” it describes as “direct care, migrant wellness support, case management, home study and post-release services, staffing, and holistic programming for unaccompanied migrant children and families”. The effort to transform ISAP into a case management program is more of the same.
Similarly, the Democratic press release for the House Homeland Security Appropriations bill for Fiscal Year 2022 cites “$10 million above the request for the Alternatives to Detention Case Management Pilot Program (for a total of $15 million), to be managed by FEMA and overseen by CRCL.” Neither the Federal Emergency Management Agency (FEMA) nor DHS’s office on Civil Rights and Civil Liberties (CRCL) has immigration-enforcement authority. The press release also cites “$100 million, to be administered by FEMA, for a non-custodial, community-based shelter grant program for immigration processing, ATD enrollment, and provision of case management services for migrants”. It also cites: “$100 million via transfer from ICE for a new Non-custodial Migrant Shelter Grant program.”
The bill contains a provision under an ICE subsection titled “Federal Assistance (Including Transfer of Funds)”. It reads:
For necessary expenses of U.S. Immigration and Customs Enforcement for Federal assistance through grants, contracts, cooperative agreements, and other activities, $100,000,000, to remain available until September 30, 2024, which shall be transferred to “Federal Emergency Management Agency — Operations and Support” and be distributed to state, local, tribal, or territorial jurisdictions or local non-profit organizations to provide shelter to individuals released from the custody of the Department of Homeland Security and to provide accommodations in support of enrollments into an Alternatives to Detention program and related Case Management services.
To be clear, this isn’t funding ICE — it’s funding NGOs connected to the White House. In sum, the goal is a major restructuring of ISAP that will take power away from law enforcement and put it in the hands of non-law-enforcement divisions of DHS and unqualified non-governmental organizations. The apparent goal is to replicate the bloated refugee resettlement program, but for illegal aliens coming across the border. Hundreds of millions of taxpayer dollars will be flowing to NGOs, none of which support ICE’s mission (in fact, plenty will be in active litigation with ICE). With CRCL running the program, ICE officers will effectively be taken out of the management of ATD. There will be no accountability for the thousands of aliens who abscond from the program each year or for those who abuse the taxpayer-subsidized assistance because the entities within DHS providing oversight will not have the legal authority to do anything about it.
In August 2021, the Biden administration issued a press release titled, “DHS Announces Alternatives to Detention Case Management Pilot Program”, which details this effort further. DHS explained that the pilot program’s purpose is to “provide voluntary case management and other services to ensure that noncitizens in removal proceedings have access to legal information and other critical services.” DHS has launched a National Board filled with NGOs that is inexplicably chaired by a political appointee running the Civil Rights and Civil Liberties office in DHS. The press release explains further that the “services will include, among others: mental health services; human and sex trafficking screening; legal orientation programs; cultural orientation programs; connections to social services; and departure planning and reintegration services for individuals returning to their home countries.”
A source tells me that one legal question the White House has been considering is whether using taxpayer dollars to fund NGOs that provide legal representation to illegal aliens raises constitutional matters regarding the right to an attorney. Since there’s no right to an attorney in a civil matter like immigration, does this use of taxpayer funds create legal expectations or discriminate against U.S. citizens seeking representation in other civil matters? It appears the goal is to get DHS to offer legal representation to all aliens by funding third-party legal organizations, and that certainly raises a number of political, operational, and legal questions that have not been fully addressed.
Conclusion. Congress must understand what ISAP has become and either strengthen it with serious legal repercussions for aliens who abscond and violate the terms of the program, such as imprisonment and fines, or consider shifting all ISAP funding to detention beds. As this draft report illustrates, the notion that nominal monitoring of released aliens provides a legitimate “alternative to detention” is not persuasive within ICE, and much of what has been reported to Congress regarding ISAP’s alleged effectiveness is not accurate. Nevertheless, ISAP continues to be a vehicle for releasing illegal aliens into the interior of the United States, nearly all of whom eventually disappear and become part of the ever-growing illegal alien population. On top of that, the Biden administration recently argued in the U.S. Supreme Court that the existence of ISAP justifies ending the Migrant Protection Protocols (MPP). Specifically, Solicitor General Elizabeth Prelogar argued: “We’ve also asked for funding for alternatives to detention, which would help us supervise a greater number of people and ensure that they’re not absconding, that they appear for their hearings.” The Solicitor General’s point was that increased use of ISAP proves “we are seriously engaging with whatever challenges exist at the border.”
Of course, monitoring illegal aliens for a short period of time and having no plan for dealing with aliens who abscond is hardly a serious approach to border security and illegal immigration. As ICE explains in the draft report, “ICE finds little value in this significant expense and concludes that increased detention is the only way to ensure compliance with the immigration court system for the majority of illegal aliens in the United States.”