As Family Detention Expands, Attys Look To Alternatives

By Nicole Narea

As the Trump administration gears up to expand detention of immigrant families, attorneys are calling attention to alternatives that could be less restrictive and more cost-effective and still ensure that respondents appear for immigration court proceedings.

The Trump administration had proposed a rule on Sept. 6 to vacate a 1997 federal consent decree known as the Flores settlement agreement, allowing the administration to detain children with their parents for the entire duration of their criminal or immigration proceedings, which often last months or years. The rule was issued in response to President Donald Trump’s June executive order directing his administration to modify the settlement agreement such that it could detain families together where possible and to create more facilities to do so.

Attorneys said that ensuring that immigrants appear for immigration court proceedings should be a priority. But they said alternative detention programs that allow case workers to check in with immigrants, community-based monitoring programs and services informing immigrants about their legal obligations might be nearly as effective at doing so as detention.

“These alternatives not only relieve the asylum applicants of needless hardship, but also save taxpayer dollars, since detention is expensive,” Stephen Legomsky, an immigration law professor at the Washington University School of Law (St. Louis), said.

Legomsky said that Congress has made detention mandatory in a limited number of cases, including those involving individuals charged with crime-related removal grounds, asylum seekers who have yet to prove they face “credible fear” of persecution in their home countries and national security threats.

But in all other cases, detention is discretionary, usually appropriate only when the individual is found to be either unlikely to appear for their hearing or a danger to the public or to themselves, he said. Even when the person might otherwise be considered a flight risk, there are alternatives that have been proven effective, Legomsky said.

The only alternative detention program still in operation by U.S. Immigration and Customs Enforcement is the Intensive Supervision Appearance Program. It administers intensive case management, supervision and location monitoring technology, including electronic ankle monitors. About $57 million of the Trump administration’s 2018 budget went to the program.

The use of ankle monitors is still more restrictive than most immigration advocates would like, said Holly Cooper, co-director of University of California, Davis School of Law’s Immigration Law Clinic and counsel to the immigrant class in the Flores case. But the Trump administration shut down its least restrictive alternative detention program, the Family Case Management program, in June 2017.

That program allowed asylum-seeking pregnant women, nursing mothers and families with very young children to be released after being assigned a caseworker, and boasted compliance rates of 99 percent for ICE check-ins and court appearances.

Sarah Pierce, a policy analyst for the Migration Policy Institute, said that there is no reason that the federal government should not reintroduce the program. Pierce acknowledged that ensuring immigrants show up for their hearings is a major challenge, but said detention is neither the most cost-efficient nor humane way of achieving that result for those who would otherwise qualify for less restrictive supervision.

It costs taxpayers $133.99 daily to hold individuals in adult immigration detention and $319.37 for an individual in family detention, according to 2017 Department of Homeland Security estimates. By contrast, the estimated cost for individuals in alternative detention programs is about $4.50 per day.

“Family Case Management is so much more affordable and doesn’t have the major human rights concerns that arise in family detention,” she said.

Another option is community-based alternative accompaniment programs. Liz Martinez, a spokesperson for the immigrant detainee advocacy group Freedom for Immigrants, said that, under such programs, immigrants would be allowed to continue living with family. If they are recent asylum seekers without family, then they would be housed with volunteers or in group homes while the courts process their immigration cases.

Martinez noted that the government has piloted community-based alternatives before. The Vera Institute for Justice partnered with the former Immigration and Naturalization Service, ICE’s predecessor, in the late 1990s to run a pilot community-based alternative to detention. Their pilot found that 93 percent of asylum seekers and 94 percent of people with past criminal convictions showed up for their immigration hearings, she said.

“These alternatives to detention do not include ankle monitors or any form of electronic monitoring — those are alternative forms of detention,” she said.

Coupled with such forms of monitoring, legal services informing immigrants of their rights and what to expect from immigration court proceedings can improve the rates at which they show up for their hearings, Cooper said. As an example, she cited the Legal Orientation Program, which was created by former President George W. Bush in 2003 and is administered by the Vera Institute of Justice, serving more than 50,000 people annually in 38 detention centers nationwide.

On April 11, the Trump administration announced plans to halt the LOP, but Democrats on the House and Senate judiciary committees slammed the planned move, noting that a DOJ study in 2012 determined that the LOP had saved the federal government $18 million over a three-year period. The DOJ backed off freezing the legal aid program later that month, but on Sept. 7, found that it doesn’t achieve higher success rates for its participants, issuing a study that has been disputed by immigrant advocates. Participants’ detention lasts longer than that of non-LOP participants and costs the federal government $40 million annually, the report said.

Cooper, who used to work for the LOP, maintains that, at least during her tenure, the program encouraged efficiency. Lawyers could tell immigrants that they did not qualify for relief and encourage them to return home. They could also help immigrants fill out forms — a responsibility which may now fall to the courts — and explain why they need to show up for their court dates or else risk forgoing benefits.

“They don’t understand what their legal obligations are,” she said.