Administration to implement pilot house arrest program for immigrants—02-11-22

Immigration news, in context

This is the 112th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

This week’s edition:

• In The Big Picture, we examine a new alternatives to detention program that would seek to keep immigrants in removal proceedings in a form of house arrest.

• In Under the Radar, we discuss a report which found that Cameroonian asylum seekers deported by the U.S. faced grievous harms upon their return.

• In Next Destination, we look at USCIS’s decision to extend work permit validity for refugees and asylum seekers.

The Big Picture

The news: The Biden administration is launching a pilot for a new alternatives to detention (ATD) program that would take the form of some type of home confinement for immigrants in removal proceedings, and which it hopes to expand into a nationwide program.

What’s happening?

As first reported by Axios, Homeland Security officials are planning on rolling out a pilot program in ICE Enforcement Removal Operations’ Baltimore and Houston field offices to expand on existing ATD concepts—the umbrella term for initiatives to continue to monitor people but not keep them in formal detention settings. As opposed to how the current electronically-monitored ATD program (known formally as the Intensive Supervision Appearance Program, or ISAP III, with ICE is now in the process of moving to the next-gen ISAP IV), this pilot would incorporate some element of house arrest as opposed to general geographic delimitations. Details remain somewhat sparse, but reporting points to a program that would require enrollees to be in their homes during nighttime hours.

Detention numbers have fluctuated throughout the Biden era, having risen sharply at certain points while declining at others, but ATD enrollment has risen pretty consistently for years and catapulted up in the last several months. According to data maintained by the TRAC project at Syracuse University, they went from about 125,000 in mid-September last year to almost 165,000 as of mid-January, dwarfing the roughly 20,000 people in ICE detention at any given time even before you consider that the ATD number includes family units, making the raw number likely much higher.

Not every person who’s in removal proceedings and not detained is in electronic ATD. People released on parole, bond, and orders of recognizance or supervision don’t necessarily need to be actively monitored, and are often instructed to merely check in with ICE periodically or attend scheduled court hearings. For those who are actively monitored, there are two methods: the traditional GPS device known as an ankle bracelet, and the more contemporary implementation of app-based surveillance.

In this latter category, ICE’s product of choice is a technology called SmartLINK, an app produced by vendor B.I. Incorporated, which is a subsidiary of… the GEO Group. That’s right, the prison conglomerate with some of the largest ICE detention contracts also produces the alternatives to detention technology of choice. Cha-ching. B.I. also recently won a $2.2 billion contract to provide support services and technology for the implementation of the above-mentioned fourth iteration of the ISAP program.

All this to say, ATD is only going to keep growing, in part because it’s actually popular with liberal Democrats, who view it as a more humane tool than indiscriminate detention. That much certainly is true; no matter the pitfalls of pervasive surveillance, it is almost inarguably better than being packed into a squalid jail (particularly during a pandemic) with terrible food, limited access to lawyers and family, and little in the way of timely health interventions. From a fiscal perspective, it is far cheaper than having tens of thousands of people in detention.

Still, that doesn’t mean that there aren’t downsides. Digital rights and privacy advocates have long wondered what type of data SmartLINK hoovers up in addition to location. Utilizing the app requires users to submit to face and voice recognition, giving that private entity control over that biometric data. Advocates argue that, in general, this type of surveillance is not necessary to ensure that people will comply with the conditions of their release and show up to immigration court, particularly since many of those put into the program are willingly turning themselves in at the border to seek asylum. And people who are determined to have violated the terms ISAP can be placed back into detention at any time, even in situations where they didn’t actually do so. In one instance documented by the Center for American Progress a Honduran asylum seeker in Louisiana was sent back to detention after traveling to Mississippi, even though his case worker had given him permission to travel.

This pilot is just the latest expression of Biden officials’ affinity for ATDs, and the consolidation of them as a sort of default option, a broadly predictable result of the tension between the president’s terror at being seen as soft on the border and the extreme pressure from immigrant advocacy and progressive groups to move away from mass detention. We have yet to find out much about what this exact proposal entails practically, technologically, and operationally, but it is almost certain to use technologies like ankle bracelets and SmartLINK if it will attempt to monitor the locations of hundreds of thousands of people in real time.

How we got here

Immigration detention as we know it began in the 1980s. Under Reagan, asylum seekers fleeing civil wars and repressive governments in Latin America and the Caribbean—including Guatemala, El Salvador, and Haiti, where the U.S. was supporting the very regimes migrants were fleeing—were detained en masse while their asylum claims were processed and, in most cases, ultimately denied. Endlessly expanding immigrant detention wasn’t always a foregone conclusion, however. As César Cuauhtémoc García Hernández wrote in his book Migrating to Prison, the White House’s Office of Management and Budget under Reagan warned that expanding the Immigration and Naturalization Service’s detention capacity “may encourage INS to detain aliens longer in order to justify the facility’s need.”

Forty years later, the U.S. detains tens of thousands of non-citizens on any given day. The average daily population has fluctuated over the years, peaking at more than 50,000 people in ICE custody per day under Trump and declining to around 21,000 more recently. 

One reason for the massive amount of people in ICE custody is mandatory detention. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which mandated detention for non-citizens convicted of certain crimes, including drug offenses. The 1996 Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) further expanded the list of offenses that make non-citizens subject to mandatory detention (though, contrary to the terminology, ICE still has the authority to release these people on certain humanitarian grounds). These policies coincided with other federal anti-crime laws that increased both the number of people arrested for and the penalties those people faced. Non-citizens caught up in the tough-on-crime policies of the ‘90s were doubly punished: first by the criminal justice system, then by the ostensibly civil immigration enforcement system. 

Immigration detention is supposed to ensure that non-citizens show up to their hearings; it’s not supposed to be a punishment, even though immigrant detention centers are practically indistinguishable from jails or prisons, are often housed in former criminal detention facilities, or are literally in jails that have been contracted to also hold immigration detainees. Alternatives to detention are, in theory, intended to reduce both the number of people in detention and the carceral nature of how ICE detention operates. But immigrant rights activists say these alternatives create new restrictions for non-citizens.

ICE’s Intensive Supervision Appearance Program began in 2004 as a pilot in eight cities across the country. Non-citizens enrolled in ISAP had to meet certain requirements: they couldn’t be subject to mandatory detention, had to live in the cities where the program was being tested, and must not “pose a threat to the community or to national security.” They were also expected to comply with certain criteria for their release, including curfews and check-ins. 

ISAP was one of several alternatives to detention being tested in 2004, but it was the only one that really stuck. By 2006, Congress appropriated $28 million for alternatives to detention. That figure increased to $114 million by 2016. The increase in funding for alternatives to detention didn’t lead to a decrease in actual detention. Instead, the use of ICE detention also increased during this time-frame. This is partly due to the fact that people subject to mandatory detention aren’t eligible for ISAP. Generally speaking, ISAP hasn’t been an alternative to detention but rather a supplement to it. It has functioned as a way for DHS to monitor people released from physical custody while also increasing the number of people in its detention facilities. 

What’s next?

According to a report in Reuters, the pilot program will initially only incorporate about 100-200 single adults at each of the two locations, but overall the administration plans to ask Congress for enough funding to put as many as 400,000 people this year into ATD programs, presumably including this new one. The concept as a whole is likely to just keep expanding, particularly as the U.S. faces expected humanitarian migration increases as a result of climate change.

The system as a whole is often derided by advocates as “e-carceration,” a false choice that represents ATDs as freedom when they’re really restrictions of a different type. However,it’s a hard battle to win, in part because privacy rights writ large have largely lost the war against the government and corporate panopticon. It seems very unlikely at this stage that policymakers and administrative officials will take advocates’ concerns seriously enough that they’ll walk back the adoption of ATD technologies as the standard response to concerns over detention.

This is likely to keep growing a population of people who are, essentially, tethered to an ICE monitoring system indefinitely as their cases move through the system. The new pilot demonstrates that there will be expansions not only of the technologies themselves but their implementation. This is the first time that ICE is adopting a form of actively enforced house arrest for those released from custody. Eventually, they might be required to only transit between work and home, or simply to not leave home at all, no matter the hour.

The other salient technology question here is the one of vetting. Some of the Trump-era efforts to implement some sort of extreme vetting of immigration applications, not just detention monitoring, have been sidelined by the new administration, but there are still plenty of policymakers and others out there who want to see invasive vetting system that incorporate applicants’ social media behavior and other internet activity and is done to some extent algorithmically. Where Biden chooses to go on this will make a huge difference in the future of U.S. immigration processes.

Under the Radar

Deported Cameroonian asylum seekers faced harm, torture

Between 80 and 90 Cameroonians deported in October and November 2020 faced significant harm after being sent back to the country, according to a new report from Human Rights Watch. The people returned to Cameroon faced arbitrary arrest, torture, rape, extortion, and prosecutions, the report found. Some of the deportees’ families were also retaliated against. 

Cameroon has been embroiled in a violent civil conflict since 2017. The Francophone government has tried to subdue Anglophone separatist groups, retaliating against everyday Anglophone Cameroonians in the process. Cameroon’s French-speaking majority has discriminated against the English-speaking minority for decades. Tensions between the two groups reached a crisis point in 2016, when the Anglophone minority protested the appointment of French-speaking judges in English-speaking parts of the country. The government responded to the protests with violent repression; soon after, Anglophone separatist groups declared that they were breaking off from the Cameroonian state. The Cameroonian government has indiscriminately arrested Anglophones since the conflict began, accusing them of being part of or otherwise supporting the separatist groups.

The United Nations estimates that three million people in Cameroon’s English-speaking regions have been affected by the conflict. An estimated one million people have been displaced as a result. 

Next Destination

USCIS extends work permit validity

U.S. Citizenship and Immigration Services has extended the validity of work permits for refugees, asylum seekers, and other migrants. Under the new regulations, work permits issued in the future will be valid for two years instead of one. The agency said the change is intended to address the lengthy processing time and backlogs USCIS is currently facing. 

For recipients, this also reduces the risk that they’ll miss a deadline or otherwise run into procedural issues that can derail their ability to live and work in the country. Each new application is an opportunity for something to go wrong, so reducing the overall number of applications that they have to submit also helps reduce the opportunity for mistakes.