What is Harmful About the U.S. Detention Policy?

By Nancy Rosen, J.D. Class of 2023

Asylum seekers leave their country to journey to the U.S. for a myriad of reasons; they are escaping repression by the government, sexual abuse, gang violence, death threats, and religious persecution, just to name a few. In Guatemala, for example, nearly one-third of women are subjected to intimate partner violence in part because of the machismo culture—the belief that men have “rightful dominance over women.”¹ In Nicaragua, the government arbitrarily detains critics, accusing them of treason while subjecting them to abusive detention conditions.²

If the asylum seekers are detained at the U.S. border by Customs and Border Patrol (“CBP”) or the interior of the U.S. by the U.S. Immigration and Customs Enforcement (“ICE”),³ they are subjected to abhorrent conditions, treated like the criminals and abusers they are trying to escape.⁴ The U.S. immigration system and detention polices are governed by immigration laws—the Immigration and Nationality Act (“INA”)—and monitored by the Enforcement and Removal Operations department under ICE.⁵ However, the U.S. immigration system tolerates detention conditions that amount to human rights abuses, allows extensive surveillance as an alternative to detention, and the U.S. detention policies permit unjust discretionary release.

What is the U.S. Detention Policy?

If a non-citizen is apprehended at the U.S. border, CBP processes and detains the individual then places them in removal proceedings before they are either released or transferred to ICE custody.⁶ Under the INA, a non-citizen who enters the U.S. without inspection or admittance⁷ is authorized to be detained pending a removal decision.⁸ A non-citizen may be released from detention on bond or conditional parole,⁹ though a non-citizen can be detained indefinitely without a bond hearing while in removal proceedings.¹⁰

ICE and immigration judges share the authority to grant conditional parole,¹¹ whereas a release on bond is solely determined by ICE.¹² Detention is discretionary, except if a non-citizen is subject to mandatory detention.¹³ Mandatory detention includes a non-citizen who has been “convicted of any two crimes of moral turpitude¹⁴ (regardless of when the crimes were committed or potential sentence they carried), or any one crime of moral turpitude for which a sentence of at least one year was imposed.”¹⁵ This reasoning is criticized for violating due process as there is no opportunity to present a case regarding why the non-citizen is not a danger or a flight risk, which are the standards for issuance of bond.¹⁶ Notably, several non-citizens in mandatory detention are still granted relief from deportation and subsequently released, while others who are determined deportable are sometimes not accepted by their home country and subsequently remain in detention indefinitely for crimes where the time has already been served.¹⁷ To be subject to mandatory detention then released upon a grant of relief highlights the arbitrary detention of many non-citizens. However, what is most striking is asylum seekers who are detained for days or weeks or months without a criminal charge or removal order.

On average, non-citizens were detained by ICE for 37.5 days during FY 2022¹⁸ with 25,134 detained as of September 25, 2022; 66.3% of those non-citizens have no criminal record.¹⁹ ICE uses various facilities for detention, including their own facilities, private prison companies, and city or county jails.²⁰ The Performance-Based National Detention Standards govern ICE detention facilities, but these standards are not binding with numerous violations reported, yet insufficient changes implemented to address the issues.²¹ ICE is said to run its detention facilities under a correctional model which is “in direct conflict with the civil nature of immigration detention.”²² The deficient conditions in ICE detention centers include denial of medical treatment, inadequate mental health care, physical and sexual abuse, solitary confinement, delays in assisting “trauma-exposed individuals,” overcrowding, lack of privacy, inadequate clothing and meals, and absence of interpretation services.²³ The detained non-citizens are further subjected to living in secured facilities, wearing prison uniforms, and abiding by strict time and movement regulations.²⁴ Moreover, detention centers have been a revenue stream for local governments²⁵ who act as the “middleman” between the detention center and ICE to “dilute accountability” for the abuse perpetrated.²⁶

Securing Release – Alternatives to Detention

There are alternatives to detention; however, the non-citizen must first secure release.²⁷ To determine eligibility for release, ICE analyzes flight risk and public safety concerns through the assessment of risk factors such as criminal history, community or family ties, medical conditions, and humanitarian concerns.²⁸ Part of the assessment includes the Risk Classification Assessment (“RCA”), “a software tool that attempts to standardize custody decisions.”²⁹ The RCA labels the risk of each non-citizen, producing a custody recommendation.³⁰ However, the labels are not always accurate as non-citizens who are eligible for release could be recommended to remain detained.³¹ An ICE supervisor reviews the RCA recommendation and is the individual who makes the final custody decision;³² however, with the RCA recommending detention when unnecessary, it becomes an excuse for ICE officers to “impos[e] detention in nearly all cases.”³³ Moreover, the RCA results are neither shared with the non-citizen nor their attorney, thus preventing “a direct challenge to the accuracy” and scoring.³⁴

If the non-citizen is released from ICE custody, they “are assigned to the non-detained docket and must report to ICE at least once a year”—the non-detained docket is a system of approximately three million non-citizens, all awaiting a removal decision.³⁵ Non-citizens released become part of Alternatives to Detention (“ATD”), which includes release with conditions, release on bond, and release on own recognizance; there are also several methods of surveillance which include case management, electronic tracking, and home curfews.³⁶ The monitoring methods are implemented through the Intensive Supervision Appearance Program (“ISAP”) which has around 182,607 enrolled non-citizens.³⁷ However, these alternatives are criticized as a means to allow the government to increase surveillance of migrants and their communities.³⁸

This analysis all comes back to the discretionary power of ICE. Due to discretion given to ICE officers, even if the non-citizen is eligible for release, ICE often decides not to grant³⁹ or even if released, the non-citizen could be placed under extensive surveillance when that action is unnecessary. Asylum seekers come to the U.S. hoping to find the safety and freedom of which they were deprived in their home country. The U.S. instead subjects them to an endless process of detention and surveillance as if they are the perpetrator. The U.S. requires a revision of its detention policies to ensure that non-citizens are treated with the dignity and humanity they deserve after enduring unimaginable pain and suffering that need not be exacerbated by waiting and hoping an ICE officer is sympathetic to their plight.

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[1] Zoe Elspeth Wands & Tolib Mirzoev, Intimate Partner Violence Against Indigenous Women in Sololá, Guatemala: Qualitative Insights Into Perspectives of Service Providers, 28 Violence Against Women 150, 151 (2021).

[2]Nicaragua: Trumped-Up Charges Against Critics, Hum. Rts. Watch (Sept. 20, 2021), https://www.hrw.org/news/2021/09/20/nicaragua-trumped-charges-against-critics.

[3] John Gramlich, How Border Apprehensions, ICE Arrests and Deportations Have Changed Under Trump, Pew Research Ctr. (Mar. 2, 2020), https://www.pewresearch.org/fact-tank/2020/03/02/how-border-apprehensions-ice-arrests-and-deportations-have-changed-under-trump/.

[4] See Alternatives to Immigration Detention: An Overview, American Immigr. Council, at 1 (Mar. 2022), https://www.americanimmigrationcouncil.org/sites/default/files/research/alternatives_to_detention_an_overview.pdf

[5] See Who We Are, U.S. Immigr. & Customs Enforcement, https://www.ice.gov/about-ice.

[6] Audrey Singer, Immigration: Alternatives to Detention (ATD) Programs, Cong. Rsch. Serv., at 3 (July 8, 2019), https://sgp.fas.org/crs/homesec/R45804.pdf.

[7]Parole from ICE Detention: An Overview of the Law, Immigr. Just. Campaign, at 4 (Apr. 28, 2020), https://www.aila.org/File/Related/20030201cd.pdf.

[8] INA § 236(a)

[9] INA § 236(a)

[10] See The Law of Immigration Detention: A Brief Introduction, Cong. Rsch. Serv., at 1 (Sept. 1, 2022), https://crsreports.congress.gov/product/pdf/IF/IF11343#:~:text=Mandatory%20Detention%20of%20Criminal%20Aliens,criminal%20or%20terrorism%2D%20related%20grounds.

[11] Parole from ICE Detention, supra note 7, at 4-5; 8 CFR 212(5)(d).

[12] See Seeking Release from Immigration Detention, American Immigr. Council, at 2 (Sept. 2019),https://www.americanimmigrationcouncil.org/research/release-immigration-detention.

[13] The Law of Immigration Detention, supra note 10, at 1; 8 CFR 212(5)(d).

[14] Chapter 5 – Conditional Bars for Acts in Statutory Period in, Policy Manual, U.S. Citizenship & Immigr. Serv., https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5#:~:text=Crimes%20against%20a%20person%20involve,use%20of%20a%20dangerous%20weapon (describing that crimes of moral turpitude include an “offense [that] contains criminal intent or recklessness or when the crime is defined as morally reprehensible by state statute”).

[15] Analysis of Immigration Detention Policies, American C.L. Union,https://www.aclu.org/other/analysis-immigration-detention-policies.

[16] Immigrant Legal Resource Center, Representing Clients in Bond Hearings: An Introductory Guide (2017), https://www.ilrc.org/sites/default/files/resources/bond_practice_guide-20170919.pdf.

[17] Id.

[18] Detention Management, U.S. Immigr. & Customs Enforcement, https://www.ice.gov/detain/detention-management; Alternatives to Immigration Detention, supra note 4, at 3.

[19]Immigration, Transaction Records Access Clearinghouse, https://trac.syr.edu/immigration/quickfacts/.

[20] Immigration Detention in the United States by Agency, American Immigration Council, at 3 (Jan. 2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigration_detention_in_the_united_states_by_agency.pdf.

[21] Id. at 4 (adding that DHS argues the violations are due to the cost of maintaining compliance).

[22] Immigration Detention & Enforcement, Nat’l Immigrant Just. Ctr., https://immigrantjustice.org/issues/immigration-detention-enforcement; Altaf Saadi et al., Understanding US Immigration Detention : Reaffirming Rights and Addressing Social-Structural Determinants of Health, 22 Health & Hum. Rts. J. 187, 189 (2020).

[23] Immigration Detention, supra note 19, at 4; Saadi, supra note 21, at 190.

[24] Saadi, supra note 21, at 189.

[25] Holding Local Governments Accountable for Jailing Immigrants, Nat’l Immigrant Just. Ctr., https://immigrantjustice.org/transparency/local-state.

[26] Office of Inspector General, Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services, Dept. Homeland Sec., at 2, (Feb. 21, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53-Feb18.pdf; Toolkit, Immigration Detention Oversight and Accountability, Nat’l Immigrant Just. Ctr. (May 22, 2019), https://immigrantjustice.org/research-items/toolkit-immigration-detention-oversight-and-accountability.

[27] See Singer, supra note 6, at Summary.

[28] Seeking Release from Immigration Detention, supra note 12, at 2; Singer, supra note 6, at 4.

[29] Singer, supra note 6, at 4.

[30] Robert Koulish & Kate Evans, Punishing with Impunity: The Legacy of Risk Classification Assessment in Immigration Detention, 36 Geo. Immigr. L. J. 1, 13 (2021).

[31] Id. at 14.

[32] Id. at 4.

[33] Id. at 36.

[34] Id. at 15.

[35] Singer, supra note 6, at 5.

[36] Alternatives to Immigration Detention, supra note 4, at 1.

[37] Id. at 3.

[38] Id. at 3.

[39] Seeking Release from Immigration Detention, supra note 12, at 2.