Featured Issue: Immigration Detention and Alternatives to Detention
Update: On March 14, 2025, AILA released a statement in response to the Trump Administration resuming the practice of detaining families pending their court proceedings in the detention facility in Karnes County, TX, and indicating its plans to use a second facility in Dilley, TX, for family detention.
AILA calls on Congress to significantly reduce and phase out the use of immigration detention for immigration enforcement purposes. Detention is costly, leads to inefficiencies in processing cases, and has a long track record of human rights abuses. Community-based case management services and legal representation is more humane and should be offered to noncitizens to support their compliance of immigration obligations.
Contents
By the Numbers
- Book Outs/Books In: The Office of Homeland Security Statistics provides data on the number of migrants who are released from CBP custody to proceed with removal cases, transfers to ICE detention, and transfers to Health & Human Services (HHS). It also provides initial book-in data on ICE detention.
- Detention: For FY2024, Congress has provided funding to detain a daily average of 41,500 noncitizens at a cost of approximately $3.4 billion. During FY2023, Congress provided funding to detain a daily average of 34,000 noncitizens at a cost of approximately $2.9 billion. A December 2024 ICE memo in response to Congressional requests for information noted that increasing detention capacity by more than 60,000 beds will require a funding increase of approximately $3.2 billion dollars.
- Current Population: Per ICE, on December 8, 2024, there were 39,062 people in custody and on January 22, 2025, there were 39,703. For future data, see bi-weekly data posted on the ICE website under “Fiscal Year 2025 statistics” here.
- Daily Costs: Projected average daily costs of detaining an adult noncitizen: $164.65. The actual cost of detaining a noncitizen varies based on geographic region, length of detention, facility type, etc. A recent ICE memo in response to the costs of expanding detention noted that they expect a 5% inflationary increase from FY2024 enacted bed costs.
- Deaths at Adult Detention Centers - AILA supplies a continually updated list of ICE press releases announcing deaths in adult immigration detention. Note: there can be delays in ICE’s reporting of deaths and there have been instances of seriously ill individuals released from ICE custody, whose deaths are not included in this list.
- ICE Alternatives to Detention: For FY2024, Congress provided approximately $470 million in funding for ICE’s Alternatives to Detention (ADT) program. This is an increase from approximately $443 million in FY2023 in which 194,427 people were enrolled.
- Daily Costs of ICE ATD: Average daily cost for participants enrolled in ICE’s Intensive Appearance Supervision Program (ISAP): $8.00
- Community-Based Case Management: The FEMA/CRCL Case Management Pilot Program (CMPP), also known as the “Alternatives to Detention Grant Program,” received $15 million in continued funding for FY2024. Prior to January 20, 2025, it was operating in five cities.
- Average daily cost of providing case management for individual family members by a community-based organization (2018 pilot): $14.05
- Legal Representation: There is no right to a government-provided attorney in immigration court and 70 percent of detained persons face proceedings without counsel. There is a pilot program that serves adult individuals with mental disabilities. Congress did not provide any funding for adult legal representation for FY2024.
AILA’s Recommendations to Congress
- Reduce detention funding to at least 25,000 average daily population or less.
- Explicitly prohibit detention funding from being used to detain families and children in custodial settings.
- Provide continued funding community-based case management programs outside of ICE such as the Case Management Pilot Program (CMPP) operated by the Federal Emergency Management Agency (FEMA) and the Office for Civil Rights and Civil Liberties (CRCL)
- Conduct robust oversight of past congressional appropriations transparency requirements and continue to require ICE to disclose and publish information relating to detention contracts, inspection process and reports, detention data, and policies for the alternatives to detention program.
Background
Created in 2002, Immigration & Customs Enforcement (ICE) has over 22,000 full-time employees, with a total annual budget of more than $9 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 first 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 been found to have been preventable. Conditions in ICE custody have been described as “barbaric” and “negligent” by DHS experts.
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 outside of custody, 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 certain portion of the overall noncitizen population 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.
Reports and Briefings
- "No Human Being Should Be Held There": The Mistreatment of LGBTQ and HIV-Positive People in U.S. Federal Immigration Jails
- Physicians for Human Rights: Endless Nightmare”: Torture and Inhuman Treatment in Solitary Confinement in U.S. Immigration Detention
- Harvard University Press Release: New Report Documents the Mental and Physical Harm Experienced by Children in Immigration Detention
- AILA Policy Brief: Case Management: An Effective and Humane Alternative to Detention - November 2, 2022
- AILA Policy Brief: Moving The Nation Forward by Leaving Immigration Detention Behind - March 25, 2021
- The Journal of the American Medical Association (JAMA): Emergency Medical Responses at US Immigration and Customs Enforcement Detention Centers in California -November 29, 2023
- Notable findings include: a number of EMS calls for pregnant people at Otay Mesa; a shockingly low number of 911 calls for psychiatric emergencies, despite the high number of complaints of serious mental health issues in the detention centers; nearly a third of all detained people had an abnormal vital sign when EMS encountered them, a disturbing trend given the association between abnormal vital signs and deaths in ICE custody; and finally, the number of emergency calls that the authors could find in EMS systems was significantly lower than the number of ICE-reported medical emergencies, a serious discrepancy that calls into question why ICE facilities aren’t calling 911 more frequently when there is an emergency happening.
- Black Alliance for Just Immigration: Uncovering the Truth: Violence and Abuse Against Black Migrants in Immigration Detention - October 2022
- Oxfam America and the Tahirih Justice Center: Surviving Deterrence: How U.S. Asylum Deterrence Policies Normalize Gender-Based Violence, October 11, 2022
- Law Professor César Cuauhtémoc García Hernández, TED Talk, The US can move past immigration prisons—and towards justice, July 27, 2022
- Alternatives to Detention: An Overview – American Immigration Council Fact Sheet, March 17, 2022
- Community Support for Migrants Navigating the U.S. Immigration System - February 26, 2021
- American Immigration Council Special Report: "Measuring In Absentia Removal in Immigration Court," Ingrid Eagly, Esq. and Steven Shafer, Esq. - January 28, 2021
Government Reports
- DHS Office of Inspector General: website has search function to view ICE detention audits, inspections, and evaluations completed by DHS OIG.
- ICE FOIA Library: Holds detention facility contracts, facility reviews, among other required posting information.
- U.S. Government Accountability Office (GAO): Agency within the legislative branch that provides auditing, evaluative, and investigative services for the United States Congress. Website has search function to view audits done of ICE detention programs and policies.
- Office of the Immigration Detention Ombudsman Annual Report– June 20, 2023. As of January 29, 2025, the 2024 Annual Report had not been published.
- DHS Office of Civil Rights & Civil Liberties Recommendation and Investigation Memo Collection: CRCL investigates abuses in immigration detention. CRCL issues recommendations to the relevant DHS Component aimed at addressing any civil rights or civil liberties concerns identified as part of its investigation.
- DHS Advisory Committee Final Report on Family Residential Centers - September 30, 2016.
Legislative and Administrative Advocacy
- The Case Management Pilot Program: A Humane, Effective Alternative to Immigration Detention - August 15, 2024
- Senators Send Letter Urging Appropriators to Include Funding for ATD - May 15, 2024
- AILA Statement to Senate on ICE's Use of Solitary Confinement - April 16, 2024
- AILA Sends Letter to White House Opposing Family Detention – March 13, 2023
- AILA and Partners Send Letter to White House Urging Closure of ICE Detention Sites - November 21, 2022
- Members of Congress Send Letter to DHS on Access to Counsel - November 3, 2022
- Over 100 House Democrats Send Letter to DHS to Halt Immigration Detention - March 10, 2022
Browse the Featured Issue: Immigration Detention and Alternatives to Detention collection
ICE’s Detention Operations Manual (2000)
A 2000 version of ICE’s Detention Operations Manual.
INS Proposed Regulation on Indefinite Detention
INS proposed rule for review process governing detention of persons ordered removed but whose removal has not been effected within 90 days. Comments are due by 7/31/00. (65 FR 40540, 6/30/00)
INS Enforcement Liaison Minutes (6/2/00)
Topics covered in a liaison meeting between AILA and INS Enforcement included prosecutorial discretion, problems with district offices ignoring G-28s, ASC processing for expiring green cards, and NAFTA adjudication issues.
INS Interpretation of Detention & Release Provisions
INS General Counsel addresses the circumstances under which non-criminal, criminal and 'terrorist' aliens subject to final removal orders should be detained. The impact of delay of removal periods is among the topics discussed.
BIA Upholds Decision to Detain Respondent Post-Order
The BIA upheld the district director’s determination to continue post-deportation order detention, after holding that it had jurisdiction over the respondent’s appeal, and that the respondent was eligible for release under INA §241(a)(6). (Matter of Saelee, 2/25/00)
INS General Counsel List of Resolved Issues
The INS General Counsel has provided a list of 21 issues that have been resolved through AILA liaison. Among other things, various unlawful presence and 245(i) questions are addressed.
EOIR Report: Evaluation of the Rights Presentation
During FY1998, the EOIR funded a short-term pilot project designed to augment the due process information detainees receive from immigration judges. Three nonprofit organizations provided daily “rights presentations” to INS detainees. This report provides a summary of the evaluation findings.
BIA on Transition Period Custody Rules
The BIA held that INA 236(c) does not apply to aliens whose most recent release from custody by an authority other than the INS occurred prior to the expiration of the Transition Period Custody Rules. (Matter of Adeniji, 11/3/99)
AAO Declares Bond Breached When Subject Failed to Appear
AAO dismissed the obligor’s appeal, upholding the breach of a $3,500 delivery bond after the obligor failed to present the bonded alien for removal.
BIA on Mandatory Detention of LPRs
The BIA held that an LPR will not be considered "properly included" in a mandatory detention category when the IJ or the BIA finds that it is substantially unlikely that the INS will prevail on a charge of removability. (Matter of Joseph, 5/28/99)
EOIR Memo on Electronic I-830
EOIR memorandum 99-4 announcing that EOIR has agreed to accept the electronic transmittal of Form I-830, Notice to EOIR: Alien Address, effective 5/1/99, formalizing the use of e-mail to notify the immigration courts and BIA of any change in an individual’s custody status while a case is pending.
New Mandatory Review Policy For INS Long-Term Detainees
INS April 30, 1999, Statement by Commissioner Meissner on INS policy for mandatory review of long-term detainees.
District Court Can Review Detention Claim
Review of claims regarding INS's use of ex parte secret evidence must be sought in the appeals court after the issuance of a final order, but under IIRIRA's transitional regime, habeas jurisdiction exists in district court to review the detention-related claims. (Haddam v. Reno, 4/28/99)
BIA on Mandatory Detention and Effect of Filing EOIR-43
The BIA held that the filing of Form EOIR-43 by the INS automatically stays an IJ's order releasing an alien who is charged under INA 236(c)(1), even where the IJ terminated proceedings after finding the alien is not subject to 236(c)(1). (Matter of Joseph, 4/23/99)
AILA Letter on AEDPA Section 440(d)
Letter from AILA to Attorney General Reno urging her to take immediate action in light of the recent U.S. Supreme Court decision (on March 8, 1999) declining review of lower court decisions which diverged from the opinion in Matter of Soriano with regards to AEDPA Section 440(d).
Draft INS Memo on Access to Legal Representation
A 3/1/99 draft INS memo regarding detainee access to legal representation.
INS Advises on Detention Procedures
A 2/3/99 memo from Michael Pearson, Executive Associate Commissioner (INS) clarifying the authority of District Directors to make release decisions and emphasizing the need to provide a review of administratively final order detention cases.
Human Rights Watch Report on Detention of Unaccompanied Minors
A 12/22/98 Human Rights Watch report finds that the INS violated the rights of unaccompanied children in its custody.
INS Memo with New Detention Guidelines
A 10/7/98 memo from Michael Pearson, Executive Associate Commissioner (INS) providing instructions on the application of the new detention guidelines.
District Court Rules on Motion in Case Involving Detainee Mistreatment
The government's motion to dismiss was granted in part and dismissed in part in a case brought by asylum seekers alleging mistreatment while being detained in an Elizabeth, New Jersey immigration detention facility. (Jama v. INS, 10/1/98)
CA2 Finds Habeas Jurisdiction for Aliens “in Custody”
The court held that the federal courts have jurisdiction under 28 USC §2241 to grant writs of habeas corpus to aliens when those aliens are “in custody in violation of the Constitution or laws or treaties of the United States.” (Henderson v. INS, 9/18/98)
INS Proposed Rule on Juvenile Processing after Flores v. Reno
INS proposed rule to establish the procedures for processing juveniles in Service custody. The new rule sets guidelines for the release of juveniles from custody and the detention of unreleased juveniles in state-licensed programs and detention facilities. (63 FR 39759, 7/24/98)
DOJ Final Rule on Criminal Detention under IIRAIRA
DOJ final rule amending the regulations of the INS and the EOIR to establish a regulatory framework for the detention of criminal aliens pursuant to the Transition Period Custody Rules set forth in IIRIRA. Effective 6/18/98. (63 FR 27441, 5/19/98)
EOIR Liaison Meeting Minutes (4/30/98)
EOIR liaison minutes from an April 30, 1998 liaison meeting between AILA and the Executive Office for Immigration Review (EOIR), topics include NACARA/suspension issues, detention and bond, asylum, attorney conduct, and process issues.
Court Dismisses Bond Redetermination Case for Failure to Exhaust
The court dismissed the habeas petition without prejudice to give the BIA the opportunity to rule on the government's appeal of the IJ's decision that Petitioner was entitled to a bond redetermination hearing. (Thompson v. INS, 4/3/98)