President Donald Trump recently modified his policy of separating children from their families. His new executive order requires the children of border crossers to be detained with their family members. Although a slight improvement over family separation, Trump’s decision raises different questions of whether detaining families together violates the 1997 Flores Settlement, whereby children have to be released after 20 days, which would necessitate family separation. The potential Flores problem could be mitigated entirely by Trump if he relied on alternatives to detention (ATD) programs instead of uniform detention of all border crossers. This would allow President Trump to claim that he ended catch and release without detaining migrant families at taxpayer cost. Immigration and
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President Donald Trump recently modified his policy of separating children from their families. His new executive order requires the children of border crossers to be detained with their family members. Although a slight improvement over family separation, Trump’s decision raises different questions of whether detaining families together violates the 1997 Flores Settlement, whereby children have to be released after 20 days, which would necessitate family separation. The potential Flores problem could be mitigated entirely by Trump if he relied on alternatives to detention (ATD) programs instead of uniform detention of all border crossers. This would allow President Trump to claim that he ended catch and release without detaining migrant families at taxpayer cost.
Immigration and Customs Enforcement (ICE) manages ATDs to explore cost-effective means for asylum seekers and illegal immigrants to reside outside of detention facilities if they are not public safety threats. The ATDs help guarantee that the migrants show up at their hearings and ensure that they comply with court rulings. The 2017 budget allocated $114 million to ICE to run these programs and the Trump administration requested about $180 million for them for 2018.
ATDs usually take at least one of three forms. The first is electronic monitoring devices whereby migrants have to wear a tracking device like an ankle bracelet. The second is assigning caseworkers to periodically check up on the migrants. The third is monetary incentives, such as bonds. Many ATD programs mix these three. ICE runs the ATD program because they are responsible for apprehending, removing, and detaining immigrants inside of the United States. Detention costs about $170 per day for long stays and about $30 for short stays. The proposed tent cities to house migrant children would have cost about $775 per person per night. As far as I can tell, about 100 percent of them comply with court orders as they are in government detention and therefore have no choice. The tradeoff for this extra effectiveness are the various costs of detention.
ATDs would have to be modified to accommodate recent border crossers, but that would not be difficult as the vast majority of them are not public safety threats. Asylum seekers, for example, have taken part in ATDs for over a decade. This post will explain the major ATDs, how they work, their costs, and effectiveness.
Intensive Supervision Appearance Program (ISAP)
This program started as a five-year pilot in 2004 and was for “immigrants in deportation proceedings who have been released from detention. The goal of the program is to avoid detention and allow immigrants to live with their families and continue working while their deportation proceedings are pending.” The second phase of ISAP began in 2010 and relied on electronic ankle monitors, telephone checkups that used biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. By February 2014, 95 percent of the participants in the ISAP II program were only monitored electronically.
ISAP II data in 2012, the last year for which data is reliably available, showed that 17,524 people left the program. Of those, 4.9 percent absconded and 4 percent were arrested by other law enforcement agencies. The other 91.1 percent complied with their court orders and either left the country or earned some sort of legal status. Appearance rates at immigration courts were 99.6 percent.
Bonds are common in many ATD programs and they function largely like bonds in the rest of the criminal justice system. They are only available to migrants who are not public safety threats. Just over 83 percent of those released on bonds showed up to their hearings in 2016. The median bond amount in immigration cases was $8000 in 2016. An appearance rate of 83 percent may not seem impressive, but this is costly for migrants who surrender their bond and a lot cheaper for the government.
Family Case Management Program
The Family Case Management Program (FCMP) uses caseworkers to help migrants meet their legal and judicial obligations, such as reporting to ICE Enforcement and Removal Operations (ERO) check-ins, appearing at court hearings, and departing the United States when ordered by the courts. ICE began the program in 2015 and shut it down in mid-2017 despite some remarkable successes. About 99 percent of all migrants in the program made it to their ICE-ERO check-ins, 100 percent made it to their court appearances, and only 2 percent absconded into the black market after receiving removal orders.
Although this program was successful, it was also expensive. The contract for the private prison contractor cost $17.5 million and there were only 954 participants, for a final price tag of over $18,000 per migrant. FCMP was also small and probably unsalable. Its cost and small scale make this is an unlikely model for widespread use nationwide but it could be useful in special circumstances.
Community Management Programs
Community Management Programs are the non-profit versions of the FCMP. The Vera Institute of Justice had a contract with the old Immigration and Naturalization Service from 1997-2000 for migrants in removal proceedings through a program called the Appearance Assistance Program (AAP). During that time, 91 percent of the participants in the Vera AAP attended their required hearings and it cost 15 percent less, per capita, than detention throughout the court proceedings. Parole and bonds cost 58 percent less but only 71 percent of them showed up to their hearings. Over 78 percent of those in the Vera AAP program who were ordered removed complied with the program, including 100 percent of criminal aliens, 82 percent of asylum seekers, and 53 percent of illegal immigrant workers.
The Family Placement Alternatives run by the Lutheran Immigration and Refugee Services (LIRS) began accepting immigrants from ICE detention in June 2013. They achieved a 97 percent appearance rate in immigration court and only cost an average of $24 a day. The per-family cost of this is $50 per day according to a 2015 pilot program, much cheaper than the estimated detention cost of $798 per family.
The Catholic Charities of New Orleans worked with 39 asylum seekers released from detention and 64 indefinite detainees who could not be deported from 1999-2002. This was just one of the many Catholic Legal Immigration Network, Inc. clinics around the United States at the time. In the New Orleans program, the court appearance rate for participants was 97 percent and the program cost $1,430 per year per client. The cost and success of the programs vary considerably.
There are other private community management programs with similar success rates.
The Flores Settlement will limit the government’s ability to detain families indefinitely unless Congress changes the law—which they likely will not. To get around this problem, the Trump administration could expand the ISAP II program, increase bond issuances, and allow Community Management Programs to house and monitor migrant families with some sort of incentive/disincentive to make sure that the people they monitor show up to their hearings. Trump could also stop prosecuting every border crosser but that is too much to ask. If past experience is any guide, these ATD programs could ensure that 90 percent of immigration court orders are carried out. That is less than perfect compliance, but it is far cheaper, more humanitarian, and less of a political disaster for this administration.
Special thanks to Lourdes Bautista, Meagan Jacobs, Andrea Vacchiano, and Tim White for their research help.