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AILA Doc. No. 21031937 | Dated March 28, 2023
AILA calls on Congress to significantly reduce and phase out the use of immigration detention for enforcement purposes.
Created in 2003, Immigration & Customs Enforcement (ICE) has over 22,000 full-time employees, with a total annual budget of more than $8 billion. The agency has three core operational directorates: Enforcement and Removal Operations (ERO), Homeland Security Investigations (HSI), and the Office of the Principal Legal Advisor (OPLA). Housed within the Department of Homeland Security, ICE joins Customs & Border Protection (CBP) in making up the nation’s largest police force.
Immigration enforcement, including taking noncitizens into custody, is the largest single area of responsibility for ICE. ICE detains noncitizens arrested from the interior of the country and those transferred from the border. Twenty-years ago, the average daily population of detained immigrants was approximately 7,000. During the Trump Administration, it reached a height of 50,000 average daily population. Regardless of the circumstances of their first encounter with authorities, 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) and localities for the purposes of detaining noncitizens. In some cases, localities later 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 to increase profit margins from contracts. One key part of the financial equation is the use of noncitizens to clean and maintain facilities in exchange for $1 a day.
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. Several deaths in custody have
Civil immigration detention works mainly to facilitate deportation. While ICE has the authority to allow most noncitizens to continue with their removal cases on the non-detained docket, it often defaults to detention based on alleged “flight risk or threat to public safety.” The vagueness of these concepts frequently works against the liberty interests of noncitizens and there is generally a lack of uniformity when it comes to these discretionary releases. Only a small portion of individuals must be detained under “mandatory detention” laws and even those individuals may be released based on certain exceptions. Lastly, because immigration detention is considered “civil,” indigent noncitizens are not generally provided counsel. As a result, representation rates for noncitizens in detention are as low as 14% and directly correlate with the ability to secure release or long-term protection.
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.
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 run 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.
Cite as AILA Doc. No. 21031937.
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