How to Renew the Commitment to Immigration Detention Reform

This is a cross-post from The Huffington Post.

“It is a serious problem, and a shameful injustice, but one with [a] straightforward solution.” That’s former New York district attorney Robert M. Morgenthau writing in theNew York Daily News last weekend, calling on Congress to repeal the language known as the immigration detention bed “quota,” and on the Department of Homeland Security (DHS) to reject the concept that it must arbitrarily detain a certain number of immigrants each day. The next day, the New York Times editorial board chimed in, asking the critical follow up question: why have an “irrational obligation to fill all those detention beds” especially when there are more cost-effective alternatives to detention?

As new leadership takes the helm at DHS, and as Congress soon begins work on a new round of appropriations, there is no better time to address the wasteful 34,000 detention bed “quota” in current appropriations language or the inappropriate conditions found in the many jails and jail-like facilities used by Immigration and Customs Enforcement (ICE). Indeed, at a Capitol Hill briefing sponsored last week by Human Rights First and the bipartisan U.S. Commission on International Religious Freedom (USCIRF), experts identified key steps that the administration and Congress can take to strengthen the U.S. approach to immigration detention.

As Human Rights First’s Eleanor Acer summarized during the event, those steps include: elimination of the bed quota, flexibility in custody decisions that make wise use of cost-effective alternative to detention, and renewed efforts to transition away from the use of facilities with jail-like conditions when detention is necessary.

USCIRF’s landmark study on expedited removal in 2005 helped convince the Obama Administration to launch its initial commitment to transform the U.S. approach to immigration detention in 2009. At Thursday’s briefing, USCIRF’s Elizabeth Cassidy highlighted the findings of the Commission’s most recent report that despite some steps forward, ICE continues to detain many asylum seekers in facilities with penal conditions, yet another trauma for those fleeing torture and persecution. The Commission called on the administration to renew its commitment to reform and in particular to maintain parole for eligible asylum seekers, to detain asylum seekers only in civil detention facilities, and expand access to critical legal orientation presentations for those in detention.

Dr. Dora Schriro, who has run the correction systems of Missouri, Arizona, and is currently Commissioner of Correction for New York City, underscored USCIRF’s recommendations. While at DHS in 2009, Dr. Schriro authored an in-depth study on ICE’s detention practices and recommended critical reforms. She emphasized that ICE should have the capacity to detain in conditions appropriate to its civil – not criminal – mandate, to detain only when necessary, and to base decisions to detain on individualized assessments. She noted that the population in ICE detention often does not need the levels of external control found in criminal justice settings, and that ICE ought to use facilities with more normalized conditions. ICE’s detention standards should be consistent with this approach, incorporating the American Bar Association’s civil immigration detention standards that were developed under the guidance of a group of experts that included both Schriro and Julie Myers Wood.

If more costly and penal detention is not the answer, there are creative and effective models of alternatives to detention. Wood, who ran ICE from 2006 to 2008, shared that in Fiscal Year 2012, of those enrolled in ICE’s current contracted alternatives to detention program, known as ISAP II, 97.4% appeared for their final hearings. Of those enrolled in the full service version of ISAP II, where individuals receive case management, 85% complied with removal orders. Compared to the $164 per day of a detention bed, the cost of ISAP II is a mere $8. Both Wood and Galen Carey of the National Association of Evangelicals also highlighted the potential for partnerships with faith-based communities in developing alternatives to detention.

Immigration detention, as Wood described, is “an outdated model” for many individuals. Where some level of supervision is necessary, advances in technology, effective case management approaches, and the development of cost-effective alternatives to detention give the federal government the tools to reform its approach. It should take a cue from Texas and other states — prompted by reform movements like “Right on Crime” — that are increasingly turning to the use of more innovative alternatives rather than automatically resorting to confinement. Wood recommended that ICE have the ability to make true assessments and have flexibility in its detention decisions.

“We have the opportunity, and the responsibility, to maintain exemplary systems for the treatment of immigrants, refugees, and asylum seekers,” said Carey. There have been several forward-thinking Members leading this charge, including Representatives Deutch (D-FL), Foster (D-IL), Roybal-Allard (D-CA) and Price (D-NC), and similarly, ICE has taken some critical steps to improve immigration detention practices. But meaningful and sensible immigration detention reform will require more support from Congressional leaders and a strong commitment from incoming DHS leadership. Americans should no longer have to bear the cost of immigration detention practices that neither make sense nor reflect this country’s values.

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