Featured Issue: Immigration Detention and Alternatives to Detention

AILA calls on Congress to significantly reduce and phase out the use of immigration detention for immigration enforcement purposes. Detention is costly, leads to inefficiencies in processing cases, and has a long track record of human rights abuses. Community-based case management services and legal representation is more humane and should be offered to noncitizens to support their compliance of immigration obligations.
 

By the Numbers

• Book Outs: When someone physically leaves Customer and Border Patrol (CBP) custody, it's called a book-out. The Office of Homeland Security Statistics provides data on the number of migrants who are released from CBP custody to proceed with removal cases, transfers to ICE detention, transfers to Health & Human Services (HHS).
• Detention: For FY2024, Congress has provided funding to detain a daily average of 41,500 noncitizens at a cost of approximately $3.4 billion. During FY2023, Congress provided funding to detain a daily average of 34,000 noncitizens at a cost of approximately $2.9 billion.
• Current Population: Number of noncitizens ICE is currently detaining: See TRAC Immigration page for current detention numbers.
• Daily Costs: Projected average daily costs of detaining an adult noncitizen: $164.65. The actual cost of detaining a noncitizen varies based on geographic region, length of detention, facility type, etc.
• Deaths at Adult Detention Centers - AILA supplies a continually updated list of ICE press releases announcing deaths in adult immigration detention. Note: there can be delays in ICE’s reporting of deaths and there have been instances of seriously ill individuals released from ICE custody, whose deaths are not included in this list.
• ICE Alternatives to Detention: For FY2024, Congress provided approximately $470 million in funding for ICE’s Alternatives to Detention (ADT) program. This is an increase from approximately $443 million in FY2023 in which 194,427 people were enrolled.
• Daily Costs of ICE ATD: Average daily cost for participants enrolled in ICE’s Intensive Appearance Supervision Program (ISAP): $8.00
• Community-Based Case Management: The FEMA/CRCL Case Management Pilot Program (CMPP), also known as the “Alternatives to Detention Grant Program,” received $15 million in continued funding for FY2024. It is currently operating in five cities.
• Average daily cost of providing case management for individual family members by a community-based organization (2018 pilot): $14.05
• Legal Representation: There is no right to a government-provided attorney in immigration court and 70 percent of detained persons face proceedings without counsel. There is one pilot program that serves adult individuals with mental disabilities. Congress did not provide any funding for adult legal representation for FY2024.

FY2024 Appropriations ICE Requirements that AILA Is Tracking

• ICE is directed to provide a briefing on plans to improve communications and access to counsel in detention no later than May 22, 2024.
• ICE is directed to provide a report on the feasibility of developing a policy on coordinating ICE releases to non-governmental organizations by June 21, 2024

In Future Appropriations, Congress Should ….

1. Reduce detention funding to at least 25,000 average daily population or less.
2. Explicitly prohibit detention funding from being used to detain families and children in custodial settings.
3. Provide continued funding community-based case management programs outside of ICE such as the Case Management Pilot Program (CMPP) operated by the Federal Emergency Management Agency (FEMA) and the Office for Civil Rights and Civil Liberties (CRCL)
4. Conduct robust oversight of past congressional appropriations transparency requirements and continue to require ICE to disclose and publish information relating to detention contracts, inspection process and reports, detention data, and policies for the alternatives to detention program.

Background

Created in 2003, Immigration & Customs Enforcement (ICE) has over 22,000 full-time employees, with a total annual budget of more than $8 billion. The agency has three core operational directorates: Enforcement and Removal Operations (ERO), Homeland Security Investigations (HSI), and the Office of the Principal Legal Advisor (OPLA). Housed within the Department of Homeland Security, ICE joins Customs & Border Protection (CBP) in making up the nation’s largest police force.

Immigration enforcement, including taking noncitizens into custody, is the largest single area of responsibility for ICE. ICE detains noncitizens arrested from the interior of the country and those transferred from the border. Twenty-years ago, the average daily population of detained immigrants was approximately 7,000. During the Trump Administration, it reached a height of 50,000 average daily population. Regardless of the circumstances of their first encounter with authorities, noncitizens are detained across America in a sprawling network of private and public detention facilities. Most of these facilities operate through contracts between ICE (or, less commonly, the U.S. Marshals Service) and localities for the purposes of detaining noncitizens. In some cases, localities later sub-contract services for operating detention facilities to private prison companies. In other instances, localities reserve space in local, county, or state jails and prisons for the purposes of detaining immigrants. In all cases, localities are financially incentivized to detain individuals to increase profit margins from contracts. One key part of the financial equation is the use of noncitizens to clean and maintain facilities in exchange for $1 a day.

Immigration detention facilities, regardless of the type of contracts, have been the sites of serious and repeated allegations of abuse, including allegations of sexual assault, violations of religious freedom, medical neglect, and the punitive use of solitary confinement. In 2020, the U.S. had the highest number of deaths in ICE adult detention since 2005. Several deaths in custody have been found to have been preventable. Conditions in ICE custody have been described as “barbaric” and “negligent” by DHS experts.

Civil immigration detention works mainly to facilitate deportation. While ICE has the authority to allow most noncitizens to continue with their removal cases on the non-detained docket, it often defaults to detention based on alleged “flight risk or threat to public safety.” The vagueness of these concepts frequently works against the liberty interests of noncitizens and there is generally a lack of uniformity when it comes to these discretionary releases. Only a small portion of individuals must be detained under “mandatory detention” laws and even those individuals may be released based on certain exceptions. Typically, people in detention are being processed via “expedited removal,” regular immigration proceedings, or reinstatement proceedings (reinstatement of prior removal order).   

Lastly, because immigration detention is considered “civil,” indigent noncitizens are not generally provided counsel. As a result, representation rates for noncitizens in detention are as low as 14% and directly correlate with the ability to secure release or long-term protection.

Reducing and Phasing Out Detention

Detention is overused and too often implemented as part of punitive policies to deter immigration and against noncitizens who are not a flight risk or a threat to public safety, including people seeking protection in this country. For all these reasons and more, AILA is calling for the dramatic reduction and eventual phasing out of immigration detention.

Reports and Briefings

• "No Human Being Should Be Held There": The Mistreatment of LGBTQ and HIV-Positive People in U.S. Federal Immigration Jails
• Physicians for Human Rights: Endless Nightmare”: Torture and Inhuman Treatment in Solitary Confinement in U.S. Immigration Detention
• Harvard University Press Release: New Report Documents the Mental and Physical Harm Experienced by Children in Immigration Detention
• AILA Policy Brief: Case Management: An Effective and Humane Alternative to Detention - November 2, 2022
• AILA Policy Brief: Moving The Nation Forward by Leaving Immigration Detention Behind - March 25, 2021
• The Journal of the American Medical Association (JAMA): Emergency Medical Responses at US Immigration and Customs Enforcement Detention Centers in California -November 29, 2023
  • Notable findings include: a number of EMS calls for pregnant people at Otay Mesa; a shockingly low number of 911 calls for psychiatric emergencies, despite the high number of complaints of serious mental health issues in the detention centers; nearly a third of all detained people had an abnormal vital sign when EMS encountered them, a disturbing trend given the association between abnormal vital signs and deaths in ICE custody; and finally, the number of emergency calls that the authors could find in EMS systems was significantly lower than the number of ICE-reported medical emergencies, a serious discrepancy that calls into question why ICE facilities aren’t calling 911 more frequently when there is an emergency happening.
• Black Alliance for Just Immigration: Uncovering the Truth: Violence and Abuse Against Black Migrants in Immigration Detention - October 2022
• Oxfam America and the Tahirih Justice Center: Surviving Deterrence: How U.S. Asylum Deterrence Policies Normalize Gender-Based Violence, October 11, 2022
• Law Professor César Cuauhtémoc García Hernández, TED Talk, The US can move past immigration prisons—and towards justice, July 27, 2022
• Alternatives to Detention: An Overview – American Immigration Council Fact Sheet, March 17, 2022
• Community Support for Migrants Navigating the U.S. Immigration System - February 26, 2021
• American Immigration Council Special Report: "Measuring In Absentia Removal in Immigration Court," Ingrid Eagly, Esq. and Steven Shafer, Esq. - January 28, 2021

Data

• ICE Provides Data on Detention, Alternatives to Detention, and ICE Facilities – Links to ICE website updated bi-weekly and with year-end report.
• Mapping U.S. Immigration Detention
  • Interactive Map of U.S. immigration Detention by Freedom for Immigrants.
• ICE Detention Trends  Vera’s ICE Detention Trends dashboard reveals an unprecedented level of detail about detention populations—nationally and across the 1,081 facilities in which ICE detained people—on each day of the 11 years immediately preceding the COVID-19 pandemic (October 1, 2008, through March 30, 2020).

Government Reports

• DHS Office of Inspector General: website has search function to view ICE detention audits, inspections, and evaluations completed by DHS OIG.
• ICE FOIA Library: Holds detention facility contracts, facility reviews, among other required posting information.
• U.S. Government Accountability Office (GAO):  Agency within the legislative branch that provides auditing, evaluative, and investigative services for the United States Congress. Website has search function to view audits done of ICE detention programs and policies.
• Office of the Immigration Detention Ombudsman Annual Report– June 20, 2023.
• DHS Office of Civil Rights & Civil Liberties Recommendation and Investigation Memo Collection: CRCL investigates abuses in immigration detention. CRCL issues recommendations to the relevant DHS Component aimed at addressing any civil rights or civil liberties concerns identified as part of its investigation.
• DHS Advisory Committee Final Report on Family Residential Centers - September 30, 2016.

Legislative and Administrative Advocacy

• The Case Management Pilot Program: A Humane, Effective Alternative to Immigration Detention
• Senators Send Letter Urging Appropriators to Include Funding for ATD - May 15, 2024
• AILA Statement to Senate on ICE's Use of Solitary Confinement - April 16, 2024
• AILA Sends Letter to White House Opposing Family Detention – March 13, 2023
• AILA and Partners Send Letter to White House Urging Closure of ICE Detention Sites - November 21, 2022
• Members of Congress Send Letter to DHS on Access to Counsel - November 3, 2022
• Over 100 House Democrats Send Letter to DHS to Halt Immigration Detention - March 10, 2022