Op-Ed: Achieving Humane Detention Reform for Asylum-Seekers in America
By Samin Huq, UNA-NCA Advocacy Fellow
The United States hosts the world’s largest immigrant detention system and spends increasing amounts of money on detention as a stop-gap for immigrants, including asylum-seekers. ICE’s total custody operations budget rose from roughly $864 million in 2005 to $3 billion in 2018 (and 2020). This extensive reliance on detaining asylum-seekers violates international human rights law — specifically the Convention on The Rights of Refugees that the US is a signatory to, and which states detention should only be a ‘’last resort’’ and never longer than 48 hours. Yet even prior to the COVID-19 pandemic, thousands languished in detention for months on end.
Advocates for detention argue expansion is needed to combat a ‘’crisis’’ of undocumented immigration. Yet, monthly border crossings (measured in terms of apprehensions) have actually been decreasing over the years since 2000, even as detention funding soared during that same period and the yearly total numbers of detainees spiked too. Yearly apprehensions have also trended in an increasingly downwards direction over the years — while apprehensions increased in 2019, they remained well below apprehensions during the 2000–2006 period, before declining again in 2020. Furthermore, the recorded undocumented population has steadily declined since 2007 and includes fewer illegal border crossers (in 2016, 62% of estimated undocumented arrivals having overstayed their visa while 38% entered without inspection). Finally, thousands of those detained aren’t “illegal immigrants’’ but exercising their right to seek asylum at an entry port. According to US law, individuals seeking asylum are entitled to appear at a port of entry and request asylum from the authorities immediately under the defensive asylum process. The asylum-seeker stays in detention throughout said process.
So Why is Detention The Norm? The History of Immigrant Detention in the US
Immigration detention in the United States officially began with the opening of Ellis Island in 1890. Every immigrant — asylum-seeker or not — had to undergo only a few hours of processing on the island, unless they were ill or had legal issues. In the 20th century, new laws rendered Ellis Island a place to primarily detain and deport illegal entrants — detainees came to include “enemy aliens’’ during WWII (citizens of Germany, Japan, and Italy or US citizens with descent tracing to those nations) and immigrants accused of pro-Communist subversion after WWII. Ellis Island closed in 1954, though the practice of detention has since continued.
In the 1970s and 1980s, the Reagan administration adopted a three-prong ‘’deterrence’’ strategy to prevent asylum-seekers escaping Cuba, Haiti, El Salvador, Guatemala, and other nations from entering and applying for asylum within the US. This strategy (entailing interdiction, detention, and deportation), alongside the War on Drugs, incarcerated so many people that the US prison population tripled and prisons got overcrowded. The Immigration and Naturalization Service (INS), which had relatively limited detention space itself, detained asylum-seekers in these already overcrowded prisons, further exacerbating the hostile conditions.
To solve overcrowding, legislators pushed for deporting asylum-seekers and undocumented migrants. In the 1990s, President Bill Clinton and key Democratic senators passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), making mandatory detention precedent for illegal immigrants, asylum-seekers requesting asylum at a port of entry, and others (until the US granted them legal status or deported them). An asylum-seeker that presents themselves to Border Patrol at a port of entry participates in an “credible fear” interview by an asylum officer from the US Immigration and Citizenship Services (USCIS), where they must show a “significant possibility” they have faced or justifiably feared persecution on account of race, gender, religion, nationality, membership in a particular social group, or political opinion.
Defensive asylum-seekers can apply for asylum in removal proceedings — a very challenging procedure where success depends on them having legal representation. In 2013, 84% of applicants had no attorney representing them in the immigration court. During removal proceedings, the asylum-seekers remain in detention, making it difficult for them to acquire legal aid and even causing applicants to abandon their claims. There has also been a “near moratorium on parole (release)” in specific areas — for example, 40 asylum-seekers spent an average of six months in detention in New Jersey detention centers. Research indicates a strong statistical correlation between IIRIRA’s passage, enforcement spending, and the proportion of immigrants in custody. In addition, IIRIRA required asylum-seekers to file their claims within one year of entry, with few exceptions for those that miss the deadline. A study in the William and Mary Law Review shows more than 30% of the affirmative asylum cases filed during an 11-year period failed to meet the deadline, and in addition to not reducing fraud, shifting cases meant a “more costly, backlogged, and overburdened immigration court system,” wasting vital federal money and resources. This deadline disenfranchises asylum-seekers who do not understand the asylum system, have legal counsel, or ability to communicate in English.
In addition to the massive increases to ICE’s total custody operations budget over the years, there were significant gains in the number of privately detained immigrants and the profits of private prison companies. From 2005 to 2019, the number of migrant detainees grew from around 20,000 to 50,165. There is reason to believe that this rise in private detention instead occurred due to private prison companies aiming to profit from detaining migrants. Private detention disproportionately targets immigrants, who are held in detention centers at higher rates compared to American prisoners. The privately detained immigrant population has risen 442% from 2002 to 2017. To give a clearer picture, the percentage of privately detained immigrants in 2005, 2014, 2016, 2018, and 2020 respectively was 25%, 62%, 73%, 70%, and 81%. CoreCivic, one of the largest private prison companies, had a net income of $50.1 million in 2005 that, by 2019, rose to $188.9 million. Its closest rival, the GEO Group, saw its net income rise from $7 million in 2005 to $166.6 million in 2019. These companies admit to benefiting from more incarceration. In 2004, CoreCivic wrote that its “management team is pursuing a number of initiatives intended to increase occupancy through obtaining new and additional contracts.’’ It added, “We are also focused on renewing and enhancing the terms of our existing contracts.” Both spent extensively on political lobbying — the GEO Group spent $2,755,108 on lobbying in 2019, while CoreCivic spent $879,000 in the same year (targeting federal, state, and local candidates).
This is not to say private prison companies or immigration enforcement are wholly to blame — the motives of local politicians cannot be ignored. Given that the US Census Bureau counts immigrant detainees as residents in the location where they are detained, having large detention centers can alter legislative districts, county board districts and city council districts, and in turn, the amount of federal funds they receive. Politicians have treated detention of asylum-seekers and other immigrants as a boon and creator of gainful employment in rural areas of the US.
How is Detention Inhumane?
Detention is inherently punitive and herds human beings into enclosures not unlike cattle or criminals, even if said humans are asylum-seekers that are legally entitled to protection. Though immigrant detention is not the same as the penal system, it does include private prisons and county jails. Razor-ribbon fences, correctional personnel in staff, orange jumpsuits not unlike those in prison, standing counts, scheduled and unscheduled searches and shakedowns, random drug testing, and personal property limitations all mirror the treatment of ‘’traditional’’ criminals. Detainees have limited exposure to outdoor activities and telephone or Internet.
Perhaps the greatest problem with immigrant detention is the effect it has on vulnerable populations like children, seeing as 69,550 were detained as of late 2019 alone. Doctors and lawyers granted access to the Ursula facility in Texas holding unaccompanied children were horrified by the conditions. These individuals compared the facility to a “torture center” with its “extreme cold temperatures, lights on 24 hours a day, no adequate access to medical care, basic sanitation, water, or adequate food.” The New York Times reported that ”children as young as 7 and 8, many of them wearing clothes caked with snot and tears, are caring for infants they’ve just met. Toddlers without diapers are relieving themselves in their pants. Teenage mothers are wearing clothes stained with breast milk.’’ Under its ‘’zero-tolerance policy’ the Trump administration had separated more than 5,000 children from their parents. The Trump administration had already run a pilot program in 2017 in El Paso that separated hundreds of families before implementing separation policy nationwide starting in May 2018. As a report by the US House of Representatives describes, if the US Customs and Border Protection (CBP) agency apprehended a family unit (parent and child), CBP would charge the parent with improper entry or reentry, separate them from their child, and transfer them into detention under the US Marshals Service (USMS). The CBP detained the children separately, classifying the latter as ‘’unaccompanied alien children’’(UAC) before placing them under the custody of the Office of Refugee Resettlement (ORR), where they would remain for 72 hours until ORR found a suitable sponsor. CBP failed to properly record as many as 100 cases of child separations.
The report notes that CBP — in spite of learning of a ‘’deficiency’’ in its records preventing government officials from tracing separated children and parents — failed to fix said ‘’deficiency’’ in its recordkeeping system. Although the Department of Homeland Security (DHS) used a web-based spreadsheet to track separated children, entries in the system lacked essential information like the parent’s name or registration number, and DHS employees accidentally created duplicate entries for children correctly identified as separated. DHS records show that recordkeeping was inconsistent (for instance, all children in one system were missing their names, parents’ names, and required separation approval documentation). The report also outlines fragmented outcomes for families, with some members of the same family permitted to remain in the US while others were removed — a 4-year old child returned alone to Central America, for instance. It took the lawsuit Ms. L vs ICE, with the plaintiffs being a mother and child seeking refuge from violence in the Democratic Republic of Congo — only for CBP to separate and detain both 2,000 miles apart — to catalyze the official ending of child separation.
This is all a violation of international law, specifically The Convention on The Rights of the Child, which explicitly states that States Parties should not separate children from their parents unless separation is in the best interests of the child. Psychologists and physicians have long noted detained children faced a heightened risk of PTSD and other disorders.
The Romanian government had invited a team of researchers for advice on caring for the 100,000 children of parents that could not afford to raise them and thus placed them in orphanages. According to a study on the effects of institutionalization on children’s psychological development, the brains of children separated from their parents diverged from those of their non-separated peers in multiple critical aspects. As a consequence of the stress and trauma caused by separation, these children scored significantly lower on IQ tests, had a broken fight-or-flight response system, and higher risks of PTSD later in life. The children separated at the border have suffered significant psychological trauma. Said trauma manifested in the form of night terrors and separation anxiety, as well as physical symptoms related to their mental trauma, such as feeling chest and heart pain in spite of nothing being physically wrong with their bodies. A report from the Inspector General’s office in the Department of Health and Human Services (HHS) found that separated children displayed ‘’more fear, feelings of abandonment and post-traumatic stress symptoms’’ than their non-separated counterparts.
Clinicians from the Physicians for Human Rights (PHR) noted that children met diagnostic criteria for at least one of three disorders: post-traumatic stress disorder (PTSD), major depressive disorder (MDD), or generalized anxiety disorder (GAD). These clinicians described the children to be demonstrating symptoms of regression in age-related behaviors, such as having nightmares, crying, being aggressive towards peers or strangers they feared would separate them from parents again, and being overly clingy to parents or caregivers. In addition, adults also suffered psychologically from not being able to remain with their children. The Trump administration and its advocates moved to separate parents from their children, citing human traffickers or sexual predators posing as parents despite a lack of proof and abrogating the principle of ‘’innocent until proven guilty.” Children continued to remain separated even after Trump officially repealed his zero-tolerance policy, with no plan to reunite them with their families before the fact. Even after both the Trump and Biden administrations reunited families, thousands of children remain separated as of June 2021. This all happened in spite of the former administration setting a deadline of family reunifications.
However, this is not to say that detaining children along with their families is an answer either. According to UNICEF, child immigration detention is not justifiable treatment for unaccompanied or separated children, nor should it be used to keep the family together. UNICEF notes that to avoid detaining unaccompanied or separated children, a country needs to swiftly identify family members and guardians and refer to national child protection authorities. An internal Department of Homeland Security report notes that migrant men detained in an El Paso facility were held in heavily crowded and unsanitary conditions — conditions so awful that guards opted to remain armed against traditional protocol over fears of rioting. More than half of the immigrants were held outdoors while those inside were held in cells five times over their holding capacity, leading to outbreaks of chickenpox, flu, scabies, and eventually COVID-19. There is evidence from PHR that adults, not unlike children, also suffer psychological trauma.
While some argue private detention saves costs, a Department of Justice (DOJ) report found both private prisons and state-run prisons had similar annual per capita costs. The report found both private or contract prisons as well as state-run prisons had similar annual per capita costs — with costs for both types of prison remaining in the low to mid $20,000 ranges from 2011 to 2014. In addition, an Arizona Department of Corrections report found private prisons cost slightly more money than state prisons upon accounting for medical costs. In 2016, Former Deputy Attorney General Sally Yates typed a memorandum asking the Bureau of Prisons to phase out private prisons as they neither reduced costs much nor maintained safety and security well. This memorandum, based on the DOJ report, cited higher rates of violence in private prisons (by inmates against other inmates or staff) than in government-run prisons.
The Case for Alternatives to Detention
Thankfully, detention is not — and has never been — the only answer. There are other ways for a country to house asylum-seekers, pending the resolution of their cases, in far healthier and safer conditions — and cost-effectively to boot, not merely as promising ideas for the future, but as proven ideas in the present. Enter: alternatives to detention (ATDs).
The International Detention Coalition (IDC) defines alternatives to detention as ‘’any law, policy or practice by which persons are not detained for reasons relating to their migration status’’. The phrase is not a legally codified term but a ’’radically different method of responding to migration governance’’ — that is, one that respects asylum-seekers, refugees, and migrants as rights holders who can comply with immigration processes without requiring deprivations of liberty. According to the IDC, successful ATDs produce cost savings and maximize compliance and migrant well-being. Common elements of such ATDs include screening, assessment, and case management to place asylum-seekers in conditions proper for them. While ATDs may seem to be a novel concept, most countries very rarely detain immigrants, including asylum-seekers.
Under US law, asylum-seekers who arrive and request protection at an official port of entry have the right to parole — release from detention before the immigration court has resolved their cases, on the condition they appear at all required immigration court hearings. Asylum-seekers that enter the country between border points have the right to bond, in which case they either pay a financial bond of $1500 minimum or accept non-monetary stipulations such as wearing a monitoring device until their cases are resolved, in exchange for freedom from detention. In both cases, asylum-seekers must be able to establish their identity and the legitimacy of their claim, as well as demonstrate that they pose neither a flight risk nor a security risk.
Bond and parole are examples of existing ATDs in the US, and both are cheaper than detention. According to the Vera Institute of Justice, it cost $7,259 to detain each compliant asylum-seeker through final hearing and final order, whereas in the same period it cost only $4,223 and $4,512 to release each compliant asylum-seeker on bond or parole through final hearing and final order respectively. However, continuous appearance and compliance rates were significantly lower for asylum-seekers released on bond or parole (78% and 73% for final hearing and final order respectively, compared to 100% for detention).
Nonprofit organizations have also run highly efficient ATD programs in the past. The faith-based Lutheran Immigration and Refugee Services (LIRS) provided case management services throughout the US over a 90-month period in 2018 under the Family Reunification Support Project (FRSP). FRSP served families reunified and released from custody after separation under the ‘’zero tolerance’’ policy, and spent $14.05 per person per day — much lower than the $319 per person per day the government spent on detention.
Through FRSP, LIRS provided case management tailored to the specific needs of individual families, and connected families with services that met their needs, such as healthcare (both physical and mental), education, housing, and pro bono legal assistance. For this project, LIRS recruited staff from the Office of Refugee Resettlement (ORR) who were bilingual and highly trained in supporting traumatized clients (including minors) as caseworkers. These caseworkers also conducted home visits to ensure the families’ home conditions were safe. The goal of FRSP was to help asylum-seeking families integrate and meet their needs while in the US.
Outside FRSP, LIRS also provided temporary shelter, food, clothing, cell phones, backpacks, and toys to reunited families. Even outside the 2018 family separation crisis, LIRS provides ‘’post-release case management support’’ every year to unaccompanied children in the care of sponsors and reunited families, as well as regularly following up with the sponsor or family to ensure the children are in safe, healthy, and stable conditions and adapting well to life in the US.
In 1996, the Vera Institute of Justice ran a three-year ATD program named the Appearance Assistance Program (AAP) in New York. The former Immigration and Naturalization Service (INS) had contracted with Vera, requesting the latter to design an ATD for noncitizens in deportation proceedings. It cost only $3,310 and $3,755 to supervise asylum-seekers under final hearing and final order respectively, compared to costs of $7,259 and $4,223 for detention and release on bond or parole respectively. Asylum-seekers appeared for final hearing and complied with the final order at rates of 93% and 82%. Though lower than the appearance and compliance rates for detention (100% for both), these rates are closer than for bond and parole.
Vera screened asylum-seekers shortly after they entered detention. Asylum-seekers wishing to participate in the AAP needed to have a place to live in NY, prove they had existing community ties (including a guarantor), and that they weren’t a security risk. Vera recommended the release of asylum-seekers that met these requirements, and upon release, placed them under supervision. Regular supervision entailed attending an orientation, providing a verified address, and meeting legal obligations like appearing in immigration court, while intensive supervision entailed compulsory personal and phone reporting, scheduled and random home visits, and consistent monitoring of asylum-seekers’ cases and locations under supervision officers.
To encourage asylum-seekers to comply with their legal obligations, the AAP provided asylum-seekers under both forms of supervision with substantial information and assistance on the immigration court process and any legal obligations they had (although it did not and could not provide legal advice). Supervision staff were the point of contact for those anxious or confused about what they were to do or what would happen to them, and were regularly available by phone for support in case asylum-seekers had any questions for them.
One US ATD with a particularly successful track record was the Family Case Management Program (FCMP), a pilot GEO Care ran in five cities (Baltimore, Los Angeles, New York City and Newark, Miami, and Chicago) from January 2016 to June 2017. The FCMP, like the FRSP mentioned earlier, provided case management services and support service referrals tailored to individual asylum-seeking families that passed a credible fear interview. The FCMP prioritized families that included pregnant or nursing members, very young children, members suffering from physical or mental health conditions, and families that only spoke indigenous languages.
According to an OIG report, asylum-seekers complied with ICE check-ins or appointments and attendance in immigration court hearings at rates of 99% and 100% respectively, with only 2% absconding. The program only cost $36 per day per family, as opposed to $319 per day per person in detention. Only families that demonstrated they were non-dangerous and posed low flight risk, in addition to residing in or intending to reside in the aforementioned five cities, could participate in the FCMP. In addition to providing case management services that suited the needs of individual families, FCMP educated said families about US immigration laws, assisted them with accessing services like legal aid or healthcare, monitored immigration obligations (including ICE check-ins, regular home visits, and mandatory immigrant court hearings). 93% of 100 surveyed participants reported positive relationships with case managers rooted in trust and feeling informed and psychologically supported vis-a-vis navigating the immigration process.
However, the FCMP ended due to ICE opting for ankle monitors and surveillance tools to save costs — tools that have received criticism for dehumanizing asylum-seekers that have already undergone traumatic situations and inhibiting their ability to move and work, with the UNHCR strongly discouraging their use and the IDC seeing them as another form of custody, as opposed to an alternative). It also cannot be ignored that GEO Care is a division of GEO Group, the same corporation that profits from private incarceration of asylum-seekers — a moral hazard.
The US can look to other countries for good examples of ATDs too. In neighboring Canada, the Toronto Bail Program (TBP) has proven to be quite successful. Operating since 1996, the TBP is a government-funded professional bail system that complements the regular bail system and supports asylum-seekers with few to no resources or community ties. The TBP, unlike the previous ones mentioned, targets asylum-seekers detained due to lack of credibility or high flight risk. Once the TBP has found eligible individuals or families through intensive selection interviews, the government releases them into intensive supervision under the organization.
The TBP, unlike traditional bail programs, does not require the asylum-seekers to pay any money to the authorities. Instead, it acts as the bondsperson or guarantor for the asylum-seekers concerned, assuming responsibility for them. Asylum-seekers sign a voluntary agreement to undergo supervision under the program on the premise that if they fail to appear for any appointments or violate terms (the article will expand on these shortly), the Canada Border Services Agency (CBSA) will issue a nationwide arrest warrant for them. Once released, individuals and families enter community supervision and check-in regularly with a caseworker.
The TBP assists asylum-seekers in filing asylum and (if permitted) work applications, as well as securing housing (working alongside local shelters and performing spot checks), healthcare, social services, and reporting to CBSA. Asylum-seekers must reside at an approved address and notify the TBP of any intended address changes and partake in mandatory activities (e.g, counseling, addiction rehabilitation, or if permitted, work). Failure to comply will lead to TBP informing the authorities, as mentioned earlier. However, compliance rates were extremely high, with asylum-seekers complying at a 96.35% rate in the 2009–2010 fiscal period and 94.31% in the 2013–2014 fiscal period. In addition, intensive supervision under the TBP costs only $10–12 CAD per person per day on average — far less than $179 CAD per person per day in detention.
Australia has bridging visas, which release asylum-seekers from detention. These are temporary visas that enable asylum-seekers to legally live in the community while the government determines the strength of their claims to protection. Conditions may include working restrictions or reporting requirements. All asylum-seekers who wish to obtain a bridging visa also must sign the ‘’Code of Behaviour’’ form, a promise to follow Australian law. Between November 2011 and 30 June 2020, the government had granted 37,026 bridging visas to asylum-seekers that arrived by boat, 12,450 of whom remained in the community either with a current bridging visa or awaiting an extension (the remaining 24,576 received a substantive visa, departed Australia, returned to detention, or passed away).
Visa holders that partake in dangerous behavior, do not comply with requests from Department of Immigration and Border Protection in relation to immigration status resolution (e.g., not attending interviews or obtaining and providing identity or travel documents), or refuse to comply with public health directives all violate this Code and the Department of Immigration may end up canceling their bridging visa and re-detain them. However, immigrants receiving bridging visas maintained a very high compliance rate of about 90% in 2009 and in 2012–2013 too.
Like the ATDs mentioned earlier, bridging visas are far more cost-effective than detention. According to the National Commission of Audit, in the fiscal year 2013–2014 the costs per person in onshore detention, offshore detention, and community detention in Australia were at least $400,000, $239,000, and $50,000 respectively. In contrast, the cost per person on a bridging visa in the same period was less than $50,000, making bridging visas cheaper than the most affordable form of detention and far cheaper than the other forms of detention.
To be clear, ATDs are not perfect, and there may be tradeoffs. For instance, compliance rates for ATDs are slightly lower than for detention, even if still very high and the cost savings are much greater. However, as Vera recommended, the US can continue to reserve detention for asylum-seekers who violate release terms or may be at serious risk of flight (for instance, those whom the immigration court has ordered for removal at their final hearing), perhaps releasing the latter under more intensive supervision if their risk of flight is low and they appeal the order.
There also may be concerns about scalability, given that multiple of the ATDs mentioned in this article cover relatively small groups of asylum-seekers. For instance, the TBP only covers asylum-seekers in Toronto, and the FCMP only covered asylum-seekers in five US cities. However, Andrew Lorenzen-Strait — formerly Former Deputy Assistant Director for Custody Management for ICE — believes it is possible to expand a program like the FCMP to cover the entire country. Given the ever-increasing amounts spent on private detention over the years and the fact ATDs cost far less per asylum-seeker, it should be quite possible to publicly fund a nationwide ATD that respects the humanity of asylum-seekers while being cost-effective.
Other Recommendations
Outside of implementing ATDs, there are ways to further streamline the immigration system in a way that serves the needs of the US and asylum-seekers much better. At present, it takes months to years to deal with individual asylum cases and lengthens the time asylum-seekers spend detained. Currently, there are only about 540 immigration judges handling nearly 1.3 million cases. The number of pending cases in the immigration court system has exploded over the past decade, from more than 262,000 in 2010 to 1.26 million in 2020.
Hiring more asylum officers and immigration judges would help cut the backlog. As Obama-era USCIS director Leon Rodriguez suggested, hiring more asylum officers would help expedite the asylum process and clear the backlog. As USCIS is involved in the initial stages of both asylum and refugee cases, it can also potentially retrain refugee officers to handle asylum cases. Tripling the number of immigration judges would only require $500 million, compared to the border wall requiring $11 billion. Simultaneously, the US could return to the Obama-era system of prioritizing deporting asylum-seekers with criminal convictions. America can grant amnesty to asylum-seekers with families or a history of military service or other honorable contributions to America, or even all non-criminal undocumented immigrants present in the US before a certain year (as the Reagan administration did for all undocumented entrants that arrived before 1982).
In addition, the current one-year asylum-filing deadline should be lengthened.
Conclusion
Detention facilities are punitive and breeding grounds for all sorts of suffering. The current overreliance on detention is a violation of human rights, endangers immigrants, and is expensive. The practical and moral thing to do is protect the human and civil rights of immigrants by minimizing use of detention and other punitive policies, excluding cases of people who pose a risk to the country or people (e.g. those accused of terrorism or human trafficking).
This massive expansion of immigrant detention is not protecting the US. On the contrary, it wastes an incredible amount of American resources and taxpayer money, further harms and traumatizes thousands of asylum-seekers, and violates international laws — all to profit a few companies. Alternatives that ensure asylum-seekers comply with US law while being far more humane, fiscally responsible, and supportive of the rule of law and security are possible — ones befitting the title ‘’land of the free, home of the brave’’.
The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the UNA-NCA or its members.
