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ALTERNATIVES TO DETENTION
The Immigration and Customs Enforcement (ICE) of the Department of Homeland
Security (DHS) detains approximately 23,000 persons per day. ICE frequently refuses
to release detainees (such as asylum-seekers and long term permanent residents with
minor, non-violent criminal convictions) who are eligible for parole or release under
orders of supervision. Moreover, it has failed to implement alternatives to detention that
would be appropriate for many of those in its custody. ICE has used money expressly
appropriated by Congress for alternatives to detention, on alternative forms of
detention. It continues to request money from Congress for programs that it
erroneously defines as alternatives to detention. These programs are overly restrictive
in nature and constitute other forms of detention, rather than meaningful alternatives to
detention.
Definition of Alternatives to Detention
Alternatives to detention include release on parole, as well as supervised release or
reintegration programs that provide social services and legal support to program
participants. Alternatives to detention do not include alternative forms of detention such
as home detention or electronic monitoring programs. DHS has begun to define
"alternatives to detention" to include electronic monitoring. It has also subjected
individuals who are eligible for release on parole to electronic monitoring. In FY 2005,
DHS requested 11 million dollars for alternatives to detention.
The Immigration and Customs Enforcement (ICE) of the Department of Homeland
Security (DHS) detains approximately 23,000 persons per day. ICE frequently refuses
to release detainees (such as asylum-seekers and long term permanent residents with
minor, non-violent criminal convictions) who are eligible for parole or release under
orders of supervision. Moreover, it has failed to implement alternatives to detention that
would be appropriate for many of those in its custody. ICE has used money expressly
appropriated by Congress for alternatives to detention, on alternative forms of
detention. It continues to request money from Congress for programs that it
erroneously defines as alternatives to detention. These programs are overly restrictive
in nature and constitute other forms of detention, rather than meaningful alternatives to
detention.
Definition of Alternatives to Detention
Alternatives to detention include release on parole, as well as supervised release or
reintegration programs that provide social services and legal support to program
participants. Alternatives to detention do not include alternative forms of detention such
as home detention or electronic monitoring programs. DHS has begun to define
"alternatives to detention" to include electronic monitoring. It has also subjected
individuals who are eligible for release on parole to electronic monitoring. In FY 2005,
DHS requested 11 million dollars for alternatives to detention.
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Suite 150
Washington, DC 20017
202.635.2556
202.635.2649 fax
media inquiries:
e-mail me
(202) 635-5810
Model Alternative to Detention
From February 1997 through March 2000, the Vera Institute for Justice Appearance Assistance Program (AAP) supervised more than
500 non-citizens in removal proceedings, including asylum-seekers, lawful permanent residents with criminal convictions, and
undocumented workers arrested in work-site raids. Participants received information about immigration proceedings, the consequences
of noncompliance, reminders of court hearings, and referrals to legal service providers. They reported to Vera supervision officers in
person and by phone and were subject to home visits. In addition to being a cost-effective alternative to detention1, the APP had
excellent results. The project found that 91 percent of supervised non-citizens appeared in court. AAP supervision also doubled the rate
of compliance with final orders of removal.
DHS Uses Congressional Funds Appropriated for Alternatives to Detention Inappropriately
The FY 2002 Commerce, Justice, State appropriations bill included an increase of $3 million to the former Immigration and Naturalization
Service (INS) to fund alternatives to detention. Following enactment of the FY 2002 CJS bill, there were several communications with the
INS to ensure compliance with the congressional intent that the $3 million be spent for alternatives to detention, using "community based
organizations to screen asylum-seekers and other INS detainees for community ties, provide them with necessary services and help to
assure their appearance at court hearings."2
In a response to an inquiry from the Subcommittee on Immigration regarding INS' intended use of the $3 million appropriation, the INS
stated that it was using the money for (1) a detention facility in Broward County, FL to house female asylum-seekers and non-criminal
females in a dormitory style setting providing a less restrictive and more humane atmosphere for individuals who were not releasable,
and (2) an electronic monitoring pilot program.3 Both initiatives are clearly alternative forms of detention, and not the type of alternative to
detention that Congress envisioned during the appropriations process.
Clarifying Congressional Language Accompanies FY 2003 Appropriation
In FY 2003, an additional $3 million was appropriated for alternatives to detention. The appropriation was accompanied by clarifying
language that stated that the funds were for "alternatives to detention to promote community-based programs for supervised release
from detention such as the Vera Institute for Justice's Appearance Assistance Project or other similar programs." The language further
stated, "These funds shall not be available for new or existing detention facilities, including non-secure detention and/or shelter care
detention facilities."
DHS Announces Intensive Supervision Appearance Program with Electronic Monitoring Component
In July 2003, DHS solicited a request for proposals (RFP) to implement an Intensive Supervision Appearance Program (ISAP) in 8 cities.
The RFP explained that the program would involve varying levels of supervision, including electronic monitoring. Potential bidders were
notified that if they failed to include plans for an electronic monitoring system in their proposal, it would not meet the technical proposal
requirements and therefore would not be considered. DHS also stated that it, not the organization or company that received the contract,
would determine which individuals would be eligible for the project and whether or not an ISAP participant would be subject to electronic
monitoring. In March 2004, CLINIC learned that the ISAP contract had been awarded to Behavioral Interventions, Inc. (BI). According to its
website, "BI pioneered the electronic monitoring (EM) industry by developing a prototype of what became the BI Home Escort ™
electronic monitoring system for supervising offenders in the community."
The Vera Institute's AAP was successful in improving the compliance of the immigrant participants because it worked with non-
governmental organizations that had substantial experience in providing social and legal services to immigrants. Recognizing that
referrals to such organizations were central to the successful operation of the AAP, Congress specifically appropriated funds to DHS to
implement a Vera-like program. CLINIC fears that ISAP will be a significant departure from the Vera AAP.
ICE Electronic Monitoring Program
In August 2003, ICE announced the implementation of an electronic monitoring pilot program in its Miami office. The announcement stated,
"This new pilot program…will be used only on non-violent, low-risk cases. [The use of EMD's] by ICE is seen as one of several methods
under consideration to maximize government resources while ensuring offenders appear at immigration proceedings."4
According to ICE, similar EMD programs are in place in Detroit, Anchorage, Seattle, and Portland. 5In Miami, the EMD program has been
used with asylum-seekers who are clearly eligible for release under parole guidelines. In addition, many program participants have not
received written instructions regarding the terms and conditions of their release. In many cases, this has contributed to innocent
violations of the program that have resulted in unnecessary re-detention of program participants. In addition, overly restrictive release
conditions have been placed on program participants, confining them to their homes during significant portions of the day for no
legitimate reason. See CLINIC letter to John Mata, ICE, Field Office Director, Miami. (Insert link to CLINIC letter to Mata on EMDs here).
An equally disturbing indication of its long-term goals was a statement made by the Field Office Director of the Miami ICE office at a
meeting with NGO's in February 2004. At that meeting the Miami ICE Field Office Director stated that if provided with ample resources,
ICE would like to "tether" all asylum-seekers released in the Miami district.
Solutions
The use of electronic monitoring devices for asylum-seekers and others who are eligible for release on parole is unnecessary and is an
ineffective use of limited government resources. In some areas of the country electronic monitoring has subjected individuals already
eligible for release under existing law to overly restrictive conditions. Because electronic monitoring is an alternative form of detention, it
should be reserved for individuals who would otherwise be detained under the mandatory provisions of the Immigration and Nationality
Act.
As stated above, ICE has requested 11 million dollars in FY 2005 to expand its alternative to detention initiatives. ICE has failed to
implement meaningful alternatives to detention similar to the Appearance Assistance Program coordinated by the Vera Institute. ICE must
re-examine its definition of alternatives to detention so that it is consistent with the Congress' intentions and involves the development of
appearance assistance programs that provide referrals to social and legal service agencies whose expertise will ensure participants
court appearance. Supervised release programs such as the Vera AAP, which provide program participants with referrals to legal and
social service resources, have proven effective in the past. ICE should focus its alternative to detention efforts on implementing such
programs and must be sure to involve community-based organizations with experience serving the immigrant population in the programs.
footnotes
1. In its evaluation of the AAP, the Vera Institute found that the daily cost of supervision, $12 per day, was significantly less than the INS
average daily cost of detention at the time, $61 per day. According to the Office of Detention Trustee, in FY 2002, it cost approximately
$85 per day to detain an immigration detainee. See http://www.usdoj.gov/ofdt/statistics.htm
2.Language taken from Senate Appropriations Report, Report 107-42, "Department of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriation Bill, 2002," p. 40.
3.Letter to the Honorable Edward M. Kennedy, Chairman, Subcommittee on Immigration, Committee on the Judiciary, U.S. Senate, from
Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, dated September 26, 2002.
4. ICE Press Release, "ICE Tests New Electronic Monitoring Program," August 8, 2003.
5. Id., Turnbull, "Seattle area helps test home detention for foreign detainees," Seattle Times, February 26, 2004.
From February 1997 through March 2000, the Vera Institute for Justice Appearance Assistance Program (AAP) supervised more than
500 non-citizens in removal proceedings, including asylum-seekers, lawful permanent residents with criminal convictions, and
undocumented workers arrested in work-site raids. Participants received information about immigration proceedings, the consequences
of noncompliance, reminders of court hearings, and referrals to legal service providers. They reported to Vera supervision officers in
person and by phone and were subject to home visits. In addition to being a cost-effective alternative to detention1, the APP had
excellent results. The project found that 91 percent of supervised non-citizens appeared in court. AAP supervision also doubled the rate
of compliance with final orders of removal.
DHS Uses Congressional Funds Appropriated for Alternatives to Detention Inappropriately
The FY 2002 Commerce, Justice, State appropriations bill included an increase of $3 million to the former Immigration and Naturalization
Service (INS) to fund alternatives to detention. Following enactment of the FY 2002 CJS bill, there were several communications with the
INS to ensure compliance with the congressional intent that the $3 million be spent for alternatives to detention, using "community based
organizations to screen asylum-seekers and other INS detainees for community ties, provide them with necessary services and help to
assure their appearance at court hearings."2
In a response to an inquiry from the Subcommittee on Immigration regarding INS' intended use of the $3 million appropriation, the INS
stated that it was using the money for (1) a detention facility in Broward County, FL to house female asylum-seekers and non-criminal
females in a dormitory style setting providing a less restrictive and more humane atmosphere for individuals who were not releasable,
and (2) an electronic monitoring pilot program.3 Both initiatives are clearly alternative forms of detention, and not the type of alternative to
detention that Congress envisioned during the appropriations process.
Clarifying Congressional Language Accompanies FY 2003 Appropriation
In FY 2003, an additional $3 million was appropriated for alternatives to detention. The appropriation was accompanied by clarifying
language that stated that the funds were for "alternatives to detention to promote community-based programs for supervised release
from detention such as the Vera Institute for Justice's Appearance Assistance Project or other similar programs." The language further
stated, "These funds shall not be available for new or existing detention facilities, including non-secure detention and/or shelter care
detention facilities."
DHS Announces Intensive Supervision Appearance Program with Electronic Monitoring Component
In July 2003, DHS solicited a request for proposals (RFP) to implement an Intensive Supervision Appearance Program (ISAP) in 8 cities.
The RFP explained that the program would involve varying levels of supervision, including electronic monitoring. Potential bidders were
notified that if they failed to include plans for an electronic monitoring system in their proposal, it would not meet the technical proposal
requirements and therefore would not be considered. DHS also stated that it, not the organization or company that received the contract,
would determine which individuals would be eligible for the project and whether or not an ISAP participant would be subject to electronic
monitoring. In March 2004, CLINIC learned that the ISAP contract had been awarded to Behavioral Interventions, Inc. (BI). According to its
website, "BI pioneered the electronic monitoring (EM) industry by developing a prototype of what became the BI Home Escort ™
electronic monitoring system for supervising offenders in the community."
The Vera Institute's AAP was successful in improving the compliance of the immigrant participants because it worked with non-
governmental organizations that had substantial experience in providing social and legal services to immigrants. Recognizing that
referrals to such organizations were central to the successful operation of the AAP, Congress specifically appropriated funds to DHS to
implement a Vera-like program. CLINIC fears that ISAP will be a significant departure from the Vera AAP.
ICE Electronic Monitoring Program
In August 2003, ICE announced the implementation of an electronic monitoring pilot program in its Miami office. The announcement stated,
"This new pilot program…will be used only on non-violent, low-risk cases. [The use of EMD's] by ICE is seen as one of several methods
under consideration to maximize government resources while ensuring offenders appear at immigration proceedings."4
According to ICE, similar EMD programs are in place in Detroit, Anchorage, Seattle, and Portland. 5In Miami, the EMD program has been
used with asylum-seekers who are clearly eligible for release under parole guidelines. In addition, many program participants have not
received written instructions regarding the terms and conditions of their release. In many cases, this has contributed to innocent
violations of the program that have resulted in unnecessary re-detention of program participants. In addition, overly restrictive release
conditions have been placed on program participants, confining them to their homes during significant portions of the day for no
legitimate reason. See CLINIC letter to John Mata, ICE, Field Office Director, Miami. (Insert link to CLINIC letter to Mata on EMDs here).
An equally disturbing indication of its long-term goals was a statement made by the Field Office Director of the Miami ICE office at a
meeting with NGO's in February 2004. At that meeting the Miami ICE Field Office Director stated that if provided with ample resources,
ICE would like to "tether" all asylum-seekers released in the Miami district.
Solutions
The use of electronic monitoring devices for asylum-seekers and others who are eligible for release on parole is unnecessary and is an
ineffective use of limited government resources. In some areas of the country electronic monitoring has subjected individuals already
eligible for release under existing law to overly restrictive conditions. Because electronic monitoring is an alternative form of detention, it
should be reserved for individuals who would otherwise be detained under the mandatory provisions of the Immigration and Nationality
Act.
As stated above, ICE has requested 11 million dollars in FY 2005 to expand its alternative to detention initiatives. ICE has failed to
implement meaningful alternatives to detention similar to the Appearance Assistance Program coordinated by the Vera Institute. ICE must
re-examine its definition of alternatives to detention so that it is consistent with the Congress' intentions and involves the development of
appearance assistance programs that provide referrals to social and legal service agencies whose expertise will ensure participants
court appearance. Supervised release programs such as the Vera AAP, which provide program participants with referrals to legal and
social service resources, have proven effective in the past. ICE should focus its alternative to detention efforts on implementing such
programs and must be sure to involve community-based organizations with experience serving the immigrant population in the programs.
footnotes
1. In its evaluation of the AAP, the Vera Institute found that the daily cost of supervision, $12 per day, was significantly less than the INS
average daily cost of detention at the time, $61 per day. According to the Office of Detention Trustee, in FY 2002, it cost approximately
$85 per day to detain an immigration detainee. See http://www.usdoj.gov/ofdt/statistics.htm
2.Language taken from Senate Appropriations Report, Report 107-42, "Department of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriation Bill, 2002," p. 40.
3.Letter to the Honorable Edward M. Kennedy, Chairman, Subcommittee on Immigration, Committee on the Judiciary, U.S. Senate, from
Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, dated September 26, 2002.
4. ICE Press Release, "ICE Tests New Electronic Monitoring Program," August 8, 2003.
5. Id., Turnbull, "Seattle area helps test home detention for foreign detainees," Seattle Times, February 26, 2004.
Advocacy Topics
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
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