U.S. Immigration and Customs Enforcement (ICE) has enrolled nearly 500,000 aliens in its Alternatives to Detention (“ATD”) program between August 2020 and June 2022, according to data obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. ICE uses ATD to release aliens subject to mandatory immigration detention and monitor their location, primarily with mobile device apps or ankle bracelets that enable GPS monitoring. Notably, the data TRAC obtained shows that, since 2021, ICE has drastically shortened the amount of time it monitors aliens enrolled in ATD and has ceased to monitor (or has “unenrolled”) nearly 200,000 aliens who are subject to mandatory detention under federal law.
Federal law requires ICE to detain certain aliens, including most recent border crossers and certain criminal aliens, pending the completion of their removal proceedings. Congress mandated detention to guarantee that these aliens will appear for their removal hearings and for actual removal from the United States. The original goal of ATD, which has been used by the government to various degrees since at least 1997, was to ensure aliens enrolled in the program show up to their immigration hearings without imposing the costs of detention onto the government (i.e., taxpayers). In the context of border apprehensions, ICE has increased its use of ATD to circumvent the Immigration and Nationality Act’s detention requirements and allow inadmissible aliens to live and work (not always legally) in the United States.
In 2021, ICE claimed that it used three types of monitoring to implement ATD: 1) “SmartLink,” a facial recognition technology that allowed participants to check in via an app; 2) GPS monitoring; and 3) telephonic reporting, in which ICE compares an alien’s voice against a voiceprint obtained during enrollment. ICE also claims that the “level of supervision” and technology used is discretionary, and largely determined by factors such as an alien’s immigration status, criminal history, ATD compliance history, whether the alien has community or familial ties, whether the alien was a caregiver, and “other humanitarian or medical conditions”. As my colleagues Andrew R. Arthur and Jon Feere have recently explained, however, ATD often doesn’t work.
TRAC reviewed the total number of individuals added to and removed from ATD to obtain a clearer picture of the total number of people impacted by ATD, and noted considerable growth in ATD usage in February 2021 (the first full month of the Biden administration). The current ATD population stands at over 316,000 aliens.
TRAC also reported that, over the course of the past two years, ICE has monitored the aliens released into the United States on ATD for less and less time despite immigration court backlogs (and relatedly, waiting times for court hearings) growing. At the beginning of the Biden administration, aliens enrolled in ATD were monitored for an average of 700 days. Currently, that average is down to about 200 days. In contrast, by the end of FY 2022, the immigration court backlog was placed at almost 1.93 million cases, up from 1.46 million in FY 2021 and 1.26 million in FY 2020. This increase is stark when considering that the immigration court backlog was 629,000 in FY 2017, which at the time was considered to be at crisis levels.
The cause for concern here is that aliens released on ATD are placed on the immigration courts’ non-detained docket, not the detained docket, which is prioritized ahead of other types of immigration cases so that they may be completed expeditiously. The average non-detained case takes 1,415 days to be completed. In contrast, the median pending time for detained cases in immigration court is just 42 days, with 94 percent of all detained cases completed in less than six months. (My colleagues Andrew R. Arthur and Dan Cadman have also explained that at these rates, ATD usually costs taxpayers more than detention, despite the fact that ATD may be cheaper than detention on a per-day basis.)
While there are a handful of reasons why ICE may unenroll an alien from ATD, completion of an alien’s immigration proceedings likely only accounts for a small fraction of unenrollment cases given the courts’ long processing times. Data from FYs 2014-2020, published by the Government Accountability Office (GAO) in June 2022, even suggests such. There, GAO cited “supervision by ICE outside of ATD”; “absconders and program violators”; and “criminal arrests while enrolled in ATD” as accounting for about 77 percent of ATD unenrollments. Only 23 percent of ATD participants were unenrolled on the basis of receiving an immigration benefit or relief (such as asylum or withholding of removal), departing the country voluntarily, or under a final order of removal.
While data providing reasons for unenrollment in FY 2021-2022 is not publicly available, ICE suggests that aliens who comply with program requirements or who do not meet the administration’s narrow enforcement priorities may be removed from ATD monitoring. Whether these individuals can be relied upon to show up to their removal hearings or later for their removal flights does not appear to be a central concern for the Biden administration, despite Congress’s clear mandates.