Immigrants and Asylum-Seekers Deserve Humane Alternatives To Detention

Each year, hundreds of thousands of individuals fleeing persecution arrive in the United States and begin the process of claiming asylum, while other undocumented immigrants in the United States encounter Immigration and Customs Enforcement (ICE).¹ Although many of these individuals end up in ICE detention, a large subset of them are released and enrolled in the Alternatives to Detention (ATD) program as they await a decision on their case or deportation. As opposed to remaining in a physical detention center, those enrolled in the ATD program are electronically monitored through ankle monitors, telephone calls, and smartphone applications.²³

As the Biden administration has worked to reform an immigration system impeded by Trump-era policies that criminalized undocumented immigrants and asylum-seekers and expanded immigration detention, the ATD program has rapidly grown.⁴ In fact, as of June 2022, a record number of almost 280,000 undocumented immigrants and asylum-seekers have been enrolled in ATD, and the Biden administration plans to double this number by the end of 2023.⁵

This is an important step toward reducing the country’s costly reliance on immigration detention, which severely harms immigrants and asylum-seekers by separating them from their families, communities, and critical services as they fight their legal cases to remain in the country.⁶

However, the expansion of the ATD program raises a new set of privacy and civil liberty concerns. Namely, there is growing concern that enrolled immigrants and asylum-seekers may experience the program as “e-carceration,” or a different form of detention, due to its invasive surveillance measures and mobility restrictions.⁷

To address this, the Biden administration must reconsider how it implements the ATD program as it works to build a more fair, humane, and functional immigration system that respects due process and the dignity of immigrants and asylum-seekers. Specifically, less restrictive, community-based approaches to administering the ATD program hold the most promise for providing immigrants and asylum-seekers with support, while also promoting voluntary compliance with immigration authorities.⁸ Instead of relying on electronic monitoring, which has become synonymous with the ATD program, the alternatives detailed in this report operate using case management models that offer wraparound social and legal support to immigrants and asylum-seekers as they resolve their cases.⁹

The goal of ICE’s Alternatives to Detention program is to ensure that immigrants and asylum-seekers comply with immigration authorities by exercising “increased supervision over a portion of those who are not detained.”¹⁰ According to ICE, enrollment in the ATD program is most effective for immigrants and asylum-seekers who have community ties and a history of compliance with immigration authorities.¹¹ This, combined with the fact that nondetained immigrants already have an overwhelmingly high appearance rate for court hearings without monitoring technologies, calls into question the current use of the ATD program and its enrollment practices.¹²

In effect, ICE is enrolling into ATD immigrants and asylum-seekers who have been determined not to be public safety threats and who are already likely to appear at court hearings. The demographic being enrolled is one that is generally eligible for release without any conditions.

Moreover, some advocates argue the program does not present true alternatives to detention but is rather an extension of the detention system, especially since the expansion of the ATD program has not directly led to a decline in the use of immigrant detention.¹³ Relatedly, despite closing multiple detention centers due to civil rights violations, the Biden administration has a new plan to convert a former correctional facility into one of the largest immigrant detention centers in the country, with 1,800 beds.¹⁴

There is also the issue of cost. Currently, the most prevalent ATD program, the Intensive Supervision Appearance Program (ISAP), uses electronic monitoring technologies to track enrollees. Proponents of the ATD program laud ISAP’s cost effectiveness at $4.11 a day per enrollee, compared to an average of $153 per day for detention.¹⁵ However, it costs $0 to release immigrants and asylum-seekers on their own recognizance, bond, or parole, if they are not subject to mandatory detention.¹⁶

After the ATD program was launched in 2004, it included enrollment options that focused on both electronic monitoring and supervised release through case management.¹⁷ However, electronic monitoring quickly took center stage as the core component of ATD programming, becoming the default method of implementing the program in 2015.¹⁸ Since then, ICE has increasingly turned to new surveillance technologies to administer the program—most notably the SmartLINK application.

Immigrants or asylum-seekers being electronically monitored by ICE are enrolled in ISAP, one program model under the wider ATD umbrella. In a major shift from ATD’s earliest iterations, case management programming no longer exists as a stand-alone ATD enrollment option but merely as an add-on to ISAP. ISAP has the highest enrollment numbers of any ATD program and, with ICE’s increasing reliance on electronic monitoring, has become singularly associated with the phrase “alternatives to detention.”¹⁹

Figure 1

Under the Biden administration, enrollment in ISAP has expanded solely through the SmartLINK application, while there has been a decrease in the number of individuals monitored through ankle monitors and telephonic reporting.²⁰

While SmartLINK and telephonic reporting do not require enrollees to wear an ankle monitor and are thus less physically invasive than other monitoring technologies, it is widely reported by immigrants and asylum-seekers that constant surveillance—regardless of the means—negatively affects their physical and mental health.²¹ Moreover, these monitoring technologies have serious design and technological flaws, which negatively affect enrollees’ quality of life and case outcomes.

Specifically, ISAP monitoring poses the following challenges:

• Enrollment in an ATD program, which currently extends for at least a year, on average,²² comes with stigmas associated with criminal behavior that can create barriers to employment, education, and obtaining legal representation.²³ This is magnified for those with visible ankle monitors and sporadic check-in requirements.²⁴
• A survey of immigrants and asylum-seekers enrolled in ISAP found that 97 percent experienced social isolation due to having to wear an ankle monitor, which, in addition to causing serious physical harm through bruising and overheating, is highly disruptive due to constant charging requirements and a loud alert system.²⁵
• A failure to report due to problems with monitoring technology, while not the fault of immigrants or asylum-seekers, could lead to a breach of their conditions of release, landing them in detention. In particular, immigrants and asylum-seekers assigned to SmartLINK fear being re-detained due to software issues that fail to deliver check-in notifications or leave them unable to upload photos. Likewise, those assigned to ankle monitoring fear being re-detained due to the device running out of battery or malfunctioning.²⁶

Beyond the harmful effects of electronic monitoring on the physical and mental well-being of immigrants and asylum-seekers, it fundamentally infringes on the enrollees’ civil liberties and privacy rights.

For instance, the “chilling effects” of ISAP’s electronic monitoring components present a threat to enrollees’ First Amendment rights, most concerningly their rights to freedom of speech and assembly.²⁷ In fact, SmartLINK’s constant surveillance has caused asylum-seekers and immigrants to modify their behavior out of fear that they may be re-detained.²⁸ This negatively affects their personal and family lives, disrupts whether and how they civically engage in their communities, and may even discourage them from accessing essential services.²⁹

Moreover, studies have shown that facial and voice recognition technologies—the core reporting components of SmartLINK and telephonic reporting—can be discriminatory and unreliable.³⁰ They have higher failure rates for transgender, nonbinary, and nonwhite individuals, further compounding the risk of immigrants and asylum-seekers being systematically targeted for re-detention by their assigned electronic monitoring technology.³¹

There is also little transparency about what biometric and geographic data are being collected through the ATD program and how they are being used, threatening the privacy and security of immigrants and asylum-seekers as well as their families and communities.³² SmartLINK has expansive geospatial data collection abilities that remain accessible at any moment to ICE officers.³³ ICE and BI Incorporated, the private contractor that holds the contract to run ISAP, have issued conflicting information about ATD data collection and use practices, raising concern since ICE has previously harnessed ATD data to conduct immigration enforcement raids.³⁴

Despite ICE’s current reliance on electronic monitoring to implement the ATD program, it is not the only option: Community-based case management programs that do not involve electronic monitoring should be the future of ATD programming. They are a proven lower-cost and noninvasive alternative to detention that have yielded high levels of compliance with court hearings and ICE check-ins even without electronic monitoring requirements.³⁵

These community-based programs demonstrate that when immigrants and asylum-seekers receive the social and legal help and support they need, they are more likely to comply with immigration authorities. However, if these case management programs operate as complementary to the electronic monitoring technologies of ISAP, rather than as stand-alone alternatives, immigrants and asylum-seekers will continue to face harm in the ATD program.

Two such programs that have been successfully operated by nonprofit community agencies are the Appearance Assistance Program and the Family Case Management Program. Notably, the federal government was involved in the development and implementation of both programs, meaning they were not true community-based alternatives to detention. However, evaluations of both programs emphasized the unique position community agencies were in to effectively provide services, suggesting that programming could be improved by eliminating the involvement of federal agencies.

• Appearance Assistance Program: From 1997 to 2000, the Vera Institute of Justice, at the request of the federal government, piloted the Appearance Assistance Program (AAP).³⁷ While federal Immigration and Naturalization Service agents referred eligible enrollees for the AAP, they were not involved in the program’s implementation.³⁸ For its duration, program officers employed through the Vera Institute provided more than 500 immigrants and asylum-seekers with legal orientations about their proceedings and the risks of noncompliance, reminders of court hearings, and referrals for legal representation and other services. Of the supervised participants, 91 percent attended all of their court hearings without additional monitoring or intervention.³⁹
• Family Case Management Program: From June 2016 to June 2017, ICE piloted the community-based Family Case Management Program (FCMP) as a new ATD program model.⁴⁰ In lieu of electronic monitoring, enrolled families had regularly scheduled check-ins with community-based and privately contracted case managers employed through GEO Care, a subsidiary of The Geo Group, Inc., which holds the contract to run ISAP. In addition, enrollees also had routine check-ins with ICE officers. Experienced case managers provided 952 heads of households and 1,211 children with holistic case management services, which included a legal orientation on immigration requirements, family service plans, transportation support, and assistance planning repatriation and reintegration upon removal.⁴¹ Key to the success of the program was that 99 percent of participants reported having a positive relationship with their case manager.⁴² In addition, the program had a 99 percent compliance rate for ICE check-ins and appointments, and enrollees showed up for 100 percent of their court appointments.⁴³

However, audits of the program found that its effectiveness was limited by the involvement of privately contracted case managers, who had insufficient knowledge of local resources and immigration processes needed to properly provide referrals and services to enrollees. Ultimately, this jeopardized outcomes for immigrants and asylum-seekers as well as the program’s overall success.⁴⁴

Case management must be community-based

In recent years, ICE has attempted to incorporate principles from the Family Case Management Program into the ATD program. However, the effectiveness of this programming—aside from often being tied to ISAP enrollment—is compromised by its implementation through ICE and its use of private, for-profit contractors.

Since 2019, ICE has contracted with BI Incorporated, a private, for-profit contractor, to offer a small number of immigrants and asylum-seekers already being monitored through ISAP additional Extended Case Management Services (ECMS).⁴⁵ Through ECMS, enrollees are assigned a BI-employed case manager who must make contact six times a month to provide information and referrals.⁴⁶ Another add-on component to ISAP is Wraparound Support Services (WSS), which include referrals to clinical services administered by partnering nongovernmental organizations, such as trafficking screening, rehabilitation, and therapy.⁴⁷

By nature of being hired and contracted through ICE rather than a community-based organization, the ability of these contracted case managers to refer immigrants and asylum-seekers to appropriate services may be limited, as seen with the FCMP. Their affiliation with ICE may also hinder the development of trust with these communities. ISAP enrollees have reported “threatening words from their case managers” and already live in fear of making a mistake while being monitored.⁴⁸ In turn, immigrants and asylum-seekers may not access vital services that are necessary to their well-being. Indeed, from November 2014 to December 2020, 63 percent of the referrals provided to ATD enrollees by contracted case managers were not used.⁴⁹

Additionally, a recent investigation by The Guardian found that case managers employed by BI Incorporated—another subsidiary of The GEO Group Inc.—were monitoring caseloads of up to 300 people, limiting their capacity to properly administer meaningful case management services.⁵⁰ Former employees reported that BI viewed the case management components of ISAP as a time and resource cost and that their superiors discouraged them from providing these services.⁵¹ BI Incorporated has maintained in public statements that they provide “high-quality case management” services.⁵²

As the Biden administration continues to reform the immigration system, it should reconsider the direction of the ATD program, which currently threatens immigrants’ and asylum-seekers’ health, civil liberties, and privacy through its reliance on electronic monitoring. Instead, ATD programming should turn toward humane, community-based case management services that allow immigrants and asylum-seekers to access the help and support they need as they settle their immigration cases, all while effectively promoting compliance with immigration authorities.

The author would like to thank Austin Kocher from the Transactional Records Access Clearinghouse and Heidi Altman from the National Immigrant Justice Center for sharing their expertise on the Alternatives to Detention program and community-based alternatives to detention, respectively. The author would also like to thank Sharita Gruberg, Rachael Eisenberg, Akua Amaning, Erin Simpson, Madeline Shepherd, Nicole Svajlenka, Nicole Lee Ndumele, Silva Mathema, and Caroline Medina from the Center for American Progress for their invaluable feedback.