Featured Issue: Immigration Detention

AILA calls on Congress to significantly reduce and phase out the use of immigration detention for enforcement purposes. As part of our approach, AILA calls on Congress to break the cycle and take urgent steps to reduce funding for detention.

• FY2021 ICE Detention Funding: 34,000 average daily population (ADP)
• FY2022 Current ICE Detention Funding: 34,000 ADP at a cost of $2.9 billion
• President Biden’s ICE Detention Funding Request: 25,000 ADP at a cost of $2.4 billion
• Current Numbers of People in Detention: see TRAC Immigration page for current numbers.

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Created in 2003, Immigration Customs & Enforcement (ICE) has over 22,000 full-time employees, with a total annual budget of more than $10 billion. The agency has three core operations: Enforcement and Removal Operations (ERO), Homeland Security Investigations (HSI), and the Office of the Principal Legal Advisor (OPLA). Immigration enforcement, including taking people into custody, is the largest single area of responsibility for ICE. Inside detention centers, ICE holds noncitizens from the interior of the country and those transferred from the border.

Noncitizens are detained across America in a sprawling network of private and public detention facilities. Most of these facilities operate through contracts between ICE (or, less commonly, the U.S. Marshals Service – USMS) and localities for the purposes of detaining noncitizens. In some cases, localities subsequently sub-contract services for operating detention facilities to private prison companies. In other instances, localities reserve space in local, county, or state jails and prisons for the purposes of detaining immigrants. In all cases, localities are financially incentivized to detain individuals.

Immigration detention facilities, regardless of the type of contracts, have been the sites of serious and repeated allegations of abuse, including allegations of sexual assault, violations of religious freedom, medical neglect, and the punitive use of solitary confinement. In 2020, the U.S. had the highest number of deaths in ICE adult detention since 2005.

Civil immigration detention works mainly to facilitate to deportation. Access to counsel is frequently an issue. As is, the ability to receive crucial legal and medical information in a noncitizen’s primary language. For example, Indigenous, African, and Caribbean speakers often report the lack of interpreter/translation access while in detention.

Detention is overused and too often implemented as part of punitive policies to deter immigration and against noncitizens who are not a flight risk or a threat to public safety, including people seeking protection in this country. For all these reasons and more, AILA is calling for the dramatic reduction and eventual phasing out of immigration detention.

Reducing and Phasing Out Detention

As part of our efforts to reduce and phase out immigration detention, AILA and coalition partners are demanding significant cuts to the ICE budget. Instead, Congress should fund community-based case management programs to be operated by experienced nonprofit immigration and refugee service providers or other nonprofits with experience in case-management focused social service programs. These programs would replace physical custody and “alternative to detention” programs, which rely on electronic monitoring, such as the use of ankle monitors. Provision of legal representation through these providers will also be key.

Advocacy and Resources

Take Action

• Take Action: Tell Congress to Reduce ICE Detention Funding – Congress missed the mark and funded a daily population of 34,000 detention beds for FY2022—keeping detention funding at the same level as former President Trump. We need your help in urging Congress to reduce ICE detention funding for FY2023. Take action today!

Reports and Briefings

• Alternatives to Detention: An Overview – American Immigration Council Fact Sheet
• “What the Numbers Tell Us” a video excerpt from “Ending Immigration Detention,” AILA University Roundtable -- June 30, 2021
• Deliberate Indifference: Records Show ICE’s Systemic Failures at Georgia Detention Facility at the Center of Gynecological Abuse Investigations – June 3, 2021
• Policy Brief: Moving the Nation Forward by Leaving Immigration Detention Behind - March 25, 2021
• Community Support for Migrants Navigating the U.S. Immigration System - February 26, 2021
  
  • American Immigration Council’s fact sheet on community support for migrants navigating the U.S. immigration system and how it can be an alternative to detention.
• American Immigration Council Special Report: "Measuring In Absentia Removal in Immigration Court," Ingrid Eagly, Esq. and Steven Shafer, Esq. - January 28, 2021
  
  • Analysis of federal government data reveals that 83 percent of all non-detained immigrants with completed or pending removal cases from fiscal years 2008 through 2018 attended all of their court hearings, demonstrating why detention is unnecessary to ensure people appear in court.
• Policy Brief: Increase in Indefinite ICE Detention Without Foreseeable Removal Dates During COVID-19 Pandemic – January 7, 2021
• Immigration Justice Campaign and Partners File Complaint Highlighting ICE’s Failure to Protect Detainees During the COVID-19 Pandemic – May 7,2020

Data

• ICE Provides Data on Detention, Alternatives to Detention, and ICE Facilities – May 7, 2021
• Mapping U.S. Immigration Detention
  
  • Interactive Map of U.S. immigration Detention by Freedom for Immigrants.
• Tracking COVID-19 in Immigration Detention
  
  • A Dashboard of ICE Data collected and updated by Vera Institute of Justice.

Government Announcements and Congressional Action

• ICE Releases Annual Report for FY2021 – March 11, 2022
• Over 100 House Democrats Send Letter to DHS to Halt Immigration Detention - March 10, 2022
• DHS Issues Updated Guidance on the Enforcement of Civil Immigration Law – September 30, 2021
• ICE ERO Releases COVID-19 Pandemic Response Requirements for ICE Detention Facilities – March 16, 2021
• Deaths at Adult Detention Centers - AILA provides a continually updated list of press releases announcing deaths in adult immigration detention.
• The Office of the Immigration Detention Ombudsman Releases 2020 Annual Report – January 19, 2021
• House Committee on Oversight and Reform Releases Report on Mistreatment of Detained Immigrants – September 1, 2020

The Immigration Justice Campaign

The American Immigration Lawyers Association and the American Immigration Council launched the Campaign as a joint initiative to bring new allies and volunteers to the fight for fairness and due process for the tens of thousands of people in immigration detention, most of whom lacked legal counsel.

For more information on how you can connect to this network of advocates and volunteers, and to read the stories of impacted people:

The Immigration Justice Campaign

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Representing Detained Individuals

Until detention is phase out, AILA will continue to provide legal representatives with information and resources to advocate for their detained clients. Please find resources from our national committees, partners, and membership to support this crucial work.

AILA Resources

• Practice Alert: Detention Ombudsman Case Intake Form Now Available - May 10, 2022
• Practice Alert: Impact of Ongoing Litigation on the Exercise of Prosecutorial Discretion – August 24, 2021
• AILA Provides Members with Recommendations in Responding to Detention Center Closures – August 19, 2021
• Practice Alert: Template for CRCL Complaint Regarding Failures to Provide Language Access – July 16, 2021
• Justice Campaign Provides Samples, Templates, and More for Detained Removal Defense Practitioners – June 16, 2021
• ICE Provides Guidance on Submitting Prosecutorial Discretion Requests to OPLA – June 11, 2021
• Resources on ICE Detention During COVID-19
• Practice Alert: Local ICE Contact Information and Local AILA ICE Liaison Information – October 14, 2020
• EOIR/ICE Liaison Committee – November 30, 2020
• Practice Pointer: How to Locate Clients that Have Been Apprehended by ICE - July 3, 2019

Litigation & FOIA Releases

• Practice Alert: Fraihat COVID-19 Detention Release Requests May Still Be Filed
  
  • AILA provides an update on the Fraihat nationwide class action lawsuit against ICE and its policies for releasing medically vulnerable individuals from detention. Members are encouraged to continue to request release for people with COVID risk factors based on current ICE policy guidance.
• Garcia Ramirez et al. v. U.S. Immigration and Customs Enforcement et al.
  
  • This lawsuit challenged Immigration and Customs Enforcement's (ICE) practice of transferring unaccompanied minors who turn 18 years old to adult custody in the agency’s contracted jails and prisons, without considering less restrictive placements.
• Washington v. GEO
  • This case challenged the practice of paying $1 per day to detained immigrants in the Voluntary Work Program.
• Sample Habeas Brief on Unlawfulness of Detention without Review for Arriving Asylum Seekers - July 19, 2021

Government Announcements

• ICE Releases New Policies on Protections for Detained Noncitizens with Mental Disorders - April 5, 2022
  • ICE issued new policies covering detained noncitizens with serious mental health disorders. Notably, this policy requires expanded access to counsel provisions such as requiring ICE to support the pre-scheduling of legal calls at no cost to the detained noncitizen, providing access to medical or mental health professionals for forensic medical evaluation and FOD/supervisory approval before a transfer is made.
• ICE Issues Guidance on Protections for Noncitizen Victims of Crime
  
  • ICE issued directive 10036.2, which states that ICE personnel are generally prohibited from using or disclosing information protected by Section 1367 to anyone other than DHS or DOJ employees. This includes information on applicants for T & U visas, continued presence, or VAWA based benefits. (3/22)
• ICE Releases FAQs on Enforcement Actions Involving Noncitizen Crime Victims
  
  • ICE released FAQs related to its policy update regarding civil immigration enforcement actions involving noncitizen crime victims, including applicants for and beneficiaries of victim-based immigration benefits. (8/21)
• DHS OIG Releases Report on ICE’s Management of COVID-19 – September 7, 2021
• ICE Provides Information on Legal Access in Detention – August 17, 2021
• Listing of immigration courts - out of 68 immigration courts and adjudication centers, approximately 18 are co-located with or inside a detention center. There is no separate list of these courts. The best way to distinguish them is from the court address indicating Detention or Correctional Facility. Another distinction - Service Processing Centers (SPC) – may also be indicative of a hearing location inside a detention center. There may, however, be exceptions to this. For instance, hearings at Houston SPC are conducted via video teleconferencing (VTC).
• ICE Issues Updated Guidance in Identifying and Monitoring Pregnant, Postpartum, or Nursing Individuals – July 1, 2021
• ICE Provides Data on Detention, Alternatives to Detention, and ICE Facilities – May 7, 2021
• ICE Announces Creation of ICE Case Review Process - March 5, 2021
• ICE Acting Director Issues Interim Guidance on Civil Immigration Enforcement and Removal Priorities – February 18, 2021
• DHS Acting Secretary Issues Memorandum on Immigration Enforcement Policies – January 20, 2021

Media Coverage on the Need to End Immigration Detention

• Reuters: U.S. to try house arrest for immigrants as alternative to detention - February 8, 2022.
• Los Angeles Times (Op-Ed): End profit-driven detention in the immigration system as well as federal prisons – December 15, 2021
• Bloomberg News: The Origins of American Immigration Detention – July 20, 2021
  
  • In this visual explainer, the origins of immigration detention in the U.S. and how it’s taken root as part of our migration system are presented using informative graphics and data.
• CNN (Opinion): It’s Time to Remember What ‘Asylum’ Really Means – April 5, 2021
  
  • CNN op-ed by Representative Pramila Jayapal (D-WA) and Joanne Lin, Director of Amnesty International USA's Advocacy and Government Affairs Department, about why it is time to end the use of expansive immigration detention that has been seen in both Republican and Democratic administrations.
• The Nation: Black Immigrants Matter - March 24, 2021
  • Jack Herrera interviews Guerline Jozef, founder of Haitian Bridge Alliance, on how mass detention began with the detention of Haitian immigrants and black immigrants continue to face excessively high rates of detention and deportation, including holding the record for the longest and second longest period of time in detention (10 years and 9 years respectively).
• Think Immigration: Prolonged and Indefinite Detention Is Inhumane and Must End – January 11, 2021
  
  • In this blog post, Immigration Justice Campaign National Advocacy Manager Katy Murdza describes how ICE is indefinitely detaining people far past the time allowed by law, and why the Justice Campaign will be advocating for the abolition of immigration detention in 2021.
• Los Angeles Times: 19 Women Allege Medical Abuse in Georgia Immigration Detention – October 22, 2020
  
  • The Los Angeles Times reports that, according to medical experts, at least 19 women at Georgia's Irwin County Detention Center were pressured into overly aggressive or medically unnecessary surgery. The medical team conducted its review in tandem with a coalition of advocates including AILA.

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Cite as AILA Doc. No. 21031937.