The Least of These

What are the alternatives to family detention?

What are the alternatives to family detention?

There are many effective, cost-saving and humane alternatives to the detention of children and their families at Hutto, some of which are already in use by Immigration and Customs Enforcement (ICE). However, the Department of Homeland Security (DHS) has prioritized increased detention capacity over these alternatives to detention (see Secure Border Initiative and Improving Border Security and Immigration Within Existing Law).

In 1997, at the request of the Immigration and Naturalization Service (INS), the Vera Institute of Justice began the Appearance Assistance Program (AAP), a three-year test of community supervision for people in immigration removal proceedings in New York City. In 2000, the Vera Institute submitted a report to the INS evaluating the program and concluding:

The addition of supervision would improve compliance rates as well as INS capacity for case management and strategic planning. Supervision would provide the agency with better information about participants’ whereabouts, passage through the system, risk of flight, and eventual departure from the country. Supervision would also provide the INS with a graduated range of alternatives to detention that would work, in the most cost-effective way, for different types of noncitizens. The lessons learned from supervision would help improve the agency’s capacity to assess a person’s eligibility for release throughout the removal process and the most appropriate release option at different stages. In this way, the INS could use all of its release alternatives to capitalize on people’s personal incentives to appear and comply with the law, and to add incentives-such as more rather than less intensive supervision, or minimal supervision rather than bond or parole-when they are needed.

By reducing its reliance on detention to secure compliance, the INS could reserve its detention space for people who cannot be released, who violate the rules of release, and who are at the stage in the process when they are at serious risk of flight. Reducing reliance on detention and using it only when necessary would also allow the INS to treat each noncitizen more fairly and humanely.

In addition to the Vera Institute study, the United Nations High Commissioner for Refugees (UNHCR) commissioned the 2006 study, Alternatives to Detention of Asylum Seekers and Refugees, which describes other successful tests of alternatives to detention in the U.S.

As of March 2007, Immigration and Customs Enforcement (ICE) utilized four types of alternatives to detention for apprehended noncitizens:

• Release on an Order of Recognizance [ROR]: An alien in immigration proceedings is released from detention under certain restrictions. These restrictions include regular reporting to DRO [Detention and Removal Operations] officers and appearing at all immigration court proceedings. ROR is usually used when an alien does not possess the financial resources to post a bond, but does not pose a threat to the community or national security. If the alien fails to appear for their hearing they will be ordered deported and will be subject to mandatory detention when apprehended.

• An appearance bond: A more restrictive alternative than ROR, the alien posts a bond of not less than $1,500 dollars, which the alien forfeits if he or she fails to appear in court as required, or upon any other demand by ICE.

•  Electronic Monitoring Devices [EMD]: A new program to ensure compliance with appearance at court and removal orders. Under this program aliens awaiting immigration court hearings or removal wear either a monitoring ankle bracelet or report by telephone to a case manager. Originally available only at specific pilot sites, the EMD program is now being implemented nationwide.

• The Intensive Supervision Appearance Program [ISAP]: ISAP is a pilot program that will only be available to aliens who are not subject to mandatory detention; who are pending immigration court proceedings or awaiting removal from the United States; are residing within the managed area; and are not deemed a threat by the Department of Homeland Security. ISAP is a voluntary program and all participants must agree to comply with the conditions of their release. Case specialists are then assigned a limited caseload of participants and are responsible for monitoring those participants in the community by using tools such as electronic monitoring (bracelets), home visits, work visits and reporting by telephone. Case specialists will also assist participants in obtaining pro-bono counsel for their hearings and help them to receive other types of assistance to which they may be entitled. The ISAP pilot has the capacity to supervise approximately 200 aliens in each of nine cities: Baltimore, MD, Delray Beach, FL, Philadelphia, PA, Miami, FL, St. Paul, MN, Denver, CO, Kansas City, MO, San Francisco, CA, and Portland, OR.

Despite the successful implementation of these alternatives to detention and Congress’s continuing encouragement for ICE to use ISAP or “to house families together in non-penal, homelike environments” in lieu of the detention of families, DHS continues to detain children and their families at Hutto.