LegiStorm

Summary:

Since FY2004, Congress has appropriated funding to the Department of Homeland Security's (DHS's) Immigration and Customs Enforcement (ICE) for an Alternatives to Detention (ATD) program to provide supervised release and enhanced monitoring for a subset of foreign nationals subject to removal whom ICE has released into the United States. These aliens are not statutorily mandated to be in DHS custody, are not considered threats to public safety or national security, and have been released either on bond, their own recognizance, or parole pending a decision on whether they should be removed from the United States. Congressional interest in ATD has increased in recent years due to a number of factors. One factor is that ICE does not have the capacity to detain all foreign nationals who are apprehended and subject to removal, a total that reached nearly 400,000 in FY2018. (ICE reported an average daily population of 48,006 aliens in detention for FY2019, through June 22, 2019.) Other factors include recent shifts in the countries of origin of apprehended foreign nationals, increased numbers of migrants who are traveling with family members, the large number of aliens requesting asylum, and the growing backlog of cases in the immigration court system. Currently, ICE's Enforcement and Removal Operations (ERO) runs an ATD program called the Intensive Supervision Appearance Program III (ISAP III). On June 22, 2019, program enrollment included more than 100,000 foreign nationals, who are a subgroup of ICE's broader "non-detained docket" of approximately 3 million aliens. Those in the non-detained docket include individuals the government has exercised discretion to release—for example, they are not considered a flight risk or there is a humanitarian reason for their release (as well as other reasons). (Others who are not detained include aliens in state or federal law enforcement custody and absconders with a final order of removal.) Individuals in the non-detained docket, and not enrolled in the ISAP III program, receive less-intensive supervision by ICE. Those in ISAP III are provided varying levels of case management through a combination of face-to-face and telephonic meetings, unannounced home visits, scheduled office visits, and court and meeting alerts. Participants may be enrolled in various technology-based monitoring services including telephonic reporting (TR), GPS monitoring (location tracking via ankle bracelets), or a recently introduced smart phone application (SmartLINK) that uses facial recognition to confirm identity as well as location monitoring via GPS. From January 2016 to June 2017, ICE also ran a community-based supervision pilot program for families with vulnerabilities not compatible with detention. The Family Case Management Program (FCMP) prioritized enrolling families with young children, pregnant or nursing women, individuals with medical or mental health considerations (including trauma), and victims of domestic violence. The program was designed to increase compliance with immigration obligations through a comprehensive case management strategy run by established community-based organizations. FCMP offered case management that included access to stabilization services (food, clothing, and medical services), obligatory legal orientation programing, and interactive and ongoing compliance monitoring. An ICE review of FCMP in March 2017 showed that the rates of compliance for the program were consistent with other ICE monitoring options. The program was discontinued due to its higher costs as compared to ISAP III. Even with the higher costs, there is considerable congressional interest in the effectiveness of FCMP as a way to maintain supervision for families waiting to proceed through the backlogged immigration court system. While DHS upholds that ISAP III is neither a removal program nor an effective substitute for detention, it notes that the program allows ICE to monitor some aliens released into communities more closely while their cases are being resolved. Supporters of ATD programs point to their lower costs compared to detention on a per day rate, and argue that they encourage compliance with court hearings and ICE check-ins. Proponents also mention the impracticalities of detaining the entire non-detained population of roughly 3 million aliens. The primary argument against ATD programs is that they create opportunities for participants to abscond (e.g., evade removal proceedings and/or orders). Other concerns include whether the existence of the programs provides incentives for foreign nationals to migrate to the United States with children to request asylum, in the hope that they will be allowed to reside in the country for several years while their cases proceed through the immigration court system, or that it provides incentives—such as community release—for adults without bona fide family relationships to travel with children and file fraudulent asylum claims or do children harm.