In a February 7 “scoop”, Axios explained how the Biden administration plans on “reinventing migrant detention” by expanding the use of “Alternatives to Detention” (ATD). ATD is not really an alternative to detention any more than “Beyond Meat” is an alternative to sirloin, but this proposal is a continuation of the White House’s plan to create “a fair, humane and lawful immigration system” — by dismantling immigration enforcement.
Alternatives to Detention. ATD is not a new idea — in fact, Congress has funded some sort of alternative to immigration detention for years, and it has been used in one manner or another since at least 1997.
Detention plainly guarantees that an alien will appear for removal hearings and for actual removal from the United States, but the whole idea behind ATD is that it can (ideally) ensure that an alien shows up for court and removal without the cost of detention. It just doesn’t always work that way.
There are several different forms of ATD, depending on how you define it. Examples include the release of aliens on bond (the money is intended to ensure the alien’s appearance), physical “check-ins” at ICE field offices, home visits, telephonic check-ins, and GPS monitoring — traditionally with ankle bracelets.
ATD in the Border Context. The biggest (though by no means the only) flaw in ATD is in the border context.
Illegal migrants enter the United States for any number of reasons, but the main one is to live and work here. The wage differentials between the United States and Central America and Mexico (from which most illegal migrants come) are significant, and in almost every case money is the main “pull factor” driving illegal migration to the United States.
Aliens who are released on ATD get to live and work (legally or otherwise) in the United States, and the release of migrants on ATD simply makes the “jobs magnet” attracting illegal migrants even stronger.
That, at least in part, is why Congress mandated that DHS detain illegal migrants who are apprehended after entering illegally or who show up at the ports of entry without proper documents. Of course, the Biden administration has largely ignored those mandates, an issue that is currently being litigated by various states in the Fifth Circuit.
ATD Costs More than Detention. Two years ago, my colleague, Dan Cadman, analyzed a number of other issues with ATD in a piece captioned “Why Alternative Programs Don’t Eliminate the Need for Immigration Detention”.
As Cadman explained, ATD may be cheaper on a daily basis than detention, but that ignores the fact that aliens released on ATD are placed on the immigration courts’ non-detained dockets, meaning that their cases will go on much, much longer, increasing the costs of ATD.
The median pending time for detained cases in immigration court is just 35 days, and 91 percent of all detained cases are completed in less than six months (PolitiFact admitted that the average detainee was held for 40 days in 2018).
According to the DHS budget request for FY 2022, the daily cost for immigration detention is just less than $152 per day. Using PolitiFact’s longer, 40-day average for detained cases, therefore, detention costs $6,080 per detained alien. For 35 days of detention, the cost falls to $5,320.
In contrast, the average time that it takes for the immigration courts to complete cases nationwide (excluding criminal aliens, national security risks, and those alleged to have terrorism ties, whom I hope are detained) is 1,066 days, a figure that climbs to 1,722 days at the Houston-Greenspoint immigration court and to 1,946 days at the Santa Ana (Calif.) immigration court.
The DHS budget requests $440 million to provide ATD to 140,000 aliens in FY 2022, which works out to $3,142.86 per alien for the year, or about $8.61 per day.
If the average non-detained case takes 1,066 days, the cost of ATD per alien would rise to $9,167.60 — making detention a comparable bargain, particularly in Texas and California.
Aliens on ATD are Less Likely to Leave. Cadman also questioned whether aliens on ATD were really going to show up for removal when their time is up.
In its FY 2019 annual report, ICE Enforcement and Removal Operations (ERO) explained that the “absconder rate” (calculated by dividing the number of ATD terminations that “occurred due to a participant absconding” by “the overall number of aliens who concluded the ATD program in a given time period”) was 12.3 percent, a figure that rose to 26.9 percent for aliens in family units (“FMUs”, consisting of adult migrants and children).
Thus, ICE ERO concluded, “while ATD can complement other immigration enforcement efforts when used appropriately on a vetted and monitored population of participants, the program was not designed to facilitate ERO’s mission of removing aliens with final orders.”
Plainly, detained aliens in ICE custody who are ordered removed will be removed, but what incentive would an alien whose first contact with the United States was an illegal entry have to leave, when and if the time came? Such aliens have already paid significant amounts to smugglers to enter and have shown disdain for the immigration laws ab initio.
Biden’s Proposal. This brings me back to the Biden proposal that was the subject of the Axios article.
The outlet reports that there are already just fewer than 179,000 aliens free on ATD — a number Axios described as “deceptively low”, and up from 35,000 when Biden took office. The outlet reveals that the administration will be asking Congress for funding for up 350,000 ATD releases.
DHS (now) contends that ATD is “an effective method of tracking” aliens “released from CBP custody who are awaiting their immigration proceedings”, but as the foregoing shows, that is an extremely questionable proposition (and an apparent shift in the department’s position from just two years ago).
Adding insult to the American people’s injury, DHS asserts: “Those who do not report are subject to arrest and potential removal by ICE.”
I would say that this assertion is a fallacious canard but look at how the department phrased its response: Aliens who abscond from ATD “are subject to arrest and potential removal by ICE”.
The first part of that statement is simply a restatement of law and fact — those aliens are subject to arrest, but that by no means suggests that they will be arrested. In fact, under the non-enforcement regime of DHS Secretary Alejandro Mayorkas, few if any will ever be arrested.
In fact, in response to a congressional request asking DHS how many illegal migrants released at the border who failed to check in with ICE were arrested, the department demurred in responding. I speak bureaucratese and can tell you that indicates none were.
Then, there is the second part of DHS’s response, about “potential” ICE removal. DHS cannot even bring itself to try to assert that those aliens will definitely be removed, though if they abscond after they have been placed into removal proceedings they will (or should be) ordered removed when they fail to appear in court.
Again, that congressional inquiry asked how many illegal migrant no-shows were removed, and in response, DHS claimed that it was “unable to statistically track the number”. That is “hogwash”, as I explained in a February 4 post. DHS can track the number, it just didn’t provide it, and the most likely reason for its dissembling is that none of those aliens were removed.
Extremely Limited ATD May Be Effective, but Not at the Scale Proposed. As the FY 2019 ICE ERO report demonstrates, in certain limited instances, ATD can complement other ICE enforcement efforts, but only if the aliens released “are vetted and monitored”. That may work for a few hundred alien releases, but not for 350,000.
In fact, there is no way for DHS to vet aliens who have entered illegally. What are they going to check: Whether the alien showed up for criminal proceedings back home? If that’s true, the aliens should not even be allowed into the United States, let alone released.
Of course, all of this ignores the fact that ATD is more expensive than detention, as explained above. As noted, the Houston-Greenspoint immigration court has the second-longest delays in the United States, but the Houston immigration court is not far behind — it takes judges there an average of 1,653 days to complete cases. Despite this, Houston is one of two cities in which the president plans on rolling out his new ATD proposal (Baltimore is the other one; cases there take 1,320 days to complete on average).
Let me do the math for you: That works out to nearly $14,826.42 per ATD case in Houston-Greenspoint, $14,232.33 in Houston, and $11,365.20 in my erstwhile hometown of Baltimore. And that’s just under current ATD, not under the administration’s proposed ATD with what Axios terms “stricter monitoring” (which I will believe when I see); that will likely make $8.61 per day seem like a bargain.
That money will go to the private entities that oversee ATD. Good for them, but likely not so good for you.
Alternatives to detention are a costly boondoggle, and the Biden administration’s plans to expand them to some 350,000 aliens is nothing more than cover for its ongoing attempts to avoid compliance with congressional mandates. Detaining aliens, and in particular illegal migrants, is cheaper, and detained aliens have their cases heard more quickly. That is a win-win for the aliens and the American people.