The briefing provided an overview of the immigration detention system and how its operations impact the federal budget as well as families and communities in every state. The panel also discussed the new ABA Civil Immigration Detention Standards, which were developed to provide a guide for the Department of Homeland Security’s announced transition to a civil detention system appropriate to its civil detention authority.
Dora B. Schriro, commissioner, New York City Department of Correction, provided a picture of who is detained. Among those who must be detained by law are criminal aliens —individuals with one or more arrests or convictions for a misdemeanor or felony — as well as those who are a national security risk, asylum seekers and arriving aliens. She noted that most detainees come from Mexico, followed by El Salvador, Guatemala and Honduras. Of the 429,000 individuals detained by U.S. Immigration and Customs Enforcement (ICE) during federal fiscal year 2011, 188,000 were criminal aliens, Schriro said. Many remain in detention for a week or less, however, a considerable number remain in a secure setting for four months or longer.
Of those with prior convictions, 21 percent had committed crimes involving drugs; 19 percent had DWIs; 3 percent committed sexual offenses; and less than a tenth of 1 percent had committed homicide, according to Schriro. ICE uses a classification system to note how dangerous a person in detention may be and to inform housing assignments and supervision strategies. The majority are classified as low custody, meaning they present little risk of harm to others. ICE recently adopted a risk assessment instrument to identify foreign nationals that are suitable for alternatives to detention and to inform the degree of supervision that is warranted if those detainees are released to the community.
Schriro said that oversupervising a low-risk individual can lead to higher rates of failure — more re-arrests for new crimes, more readmissions to custody — and that a less-restrictive setting or conditions are best. Likewise, undersupervising a high-risk individual can result in equally unwelcome results. Risk assessments should be made periodically to ensure the correct placement and supervision conditions are maintained. She urged that we take lessons learned from corrections by making use of available alternatives to detention and assigning people to the least restrictive setting to achieve the desired results.
“The purpose of civil detention,” Schriro noted, “is expressly not for punishment.”
Julie Myers Wood, president – compliance, Federal Practice and Software Solutions and former head of ICE, agreed, explaining that the purpose is to ensure that detainees return home. Wood said it is tough to detain immigration detainees the right way because there are not a lot of facilities for civil detention.
Wood discussed ICE’s alternative to detention programs, which had 42,000 participants in 2012. The alternatives included phone-reporting and GPS systems as well as a full-service program that involved counseling on how to find a lawyer and obtain travel documents for deportation. Wood said the alternatives programs have very positive results. Under the full-service program, which costs less than $8 per person per day, 99.7 percent of participants appeared for their final hearing, and 85 percent complied with final orders of removal, while the scaled-down, technology-based program had a 45 percent compliance rate for final orders. Wood encouraged challenging the premise of who must be detained. “Some folks, in my view, shouldn’t fall into mandatory detention,” she said.
Donald M. Kerwin Jr., executive director, Center for Migration Studies and acting executive director of the Catholic Legal Immigration Network, said facilities should not be a jail or jail-like. “They should approximate normal living conditions,” he said, and offer freedom of movement as well as indoor and outdoor space.
The ABA Civil Immigration Detention Standards can be ordered or downloaded at www.americanbar.org/immigration.