Time for Implementation An Alternative to Immigration and Asylum Detention in the United States
The Vera Institute of Justice has operated since 1961 throughout the United States with the goal of working with government and civil leaders to promote the needs of marginalized communities, to unravel the impediments to human dignity to inform decisions, and to improve justice systems that ensure fairness, promote safety, and strengthen communities. Instilling optimism to drive the idea that even the most troubled justice systems can transform, this nonprofit organization has had a powerful impact in implementing demonstration projects that promote just practices in government. The Immigration and Naturalization Service (INS) asked the Vera Institute of Justice in 1996 to establish and coordinate a community-based supervised release project for people in removal proceedings in New York City. As such, the Appearance Assistance Program (AAP) under the Vera Institute of Justice became operational in February 1997 and ended in March 2000.
At that time, the INS was exploring alternatives to detention and proceeded to ask Vera to test whether community supervision could improve rates of appearance and compliance without increasing reliance on immigration detention. As such, the INS’ overarching goal was to compare existing alternatives to detention used by the agency – which was bond, parole, and release on recognizance at the time – to community supervision programs in efforts to explore and evaluate its effect on noncitizens rates of appearance in court and compliance with court rulings. While the use of immigration detention ensures that individuals attend their hearings and comply with removal orders, such practices gravely interferes with human rights and harms health and well-being across all spectrums thus causing unnecessary human suffering. Further, detention facilities are very costly to implement and maintain, and regularly fails to fulfill its objectives.
The Vera Institute of Justice has developed an innovative and original methodology for achieving its goals. The project supervised more than 500 cases, who were categorized into three groups: 1) asylum seekers arriving in ports of entry; 2) individuals facing removal as a result of a criminal conviction; and 3) undocumented workers apprehended at work sites.A key point is that the program is based on a process where supervision is provided at either intensive or regular levels. To fit under the intensive level, participants were those initially detained by the INS and then released to the AAP. Intensive participants had the obligation to regularly report to AAP supervision officers in person and by phone; further, program staff monitored each participant and thereafter reassessed the risk of flight. Alternatively, regular participants consisted of noncitizens apprehended by the INS and then released on recognizance. For the supervision provided under the regular level, participants entered the program voluntarily. Both levels of supervision ensured that all individuals received information about immigrant proceedings and the consequences of noncompliance, referrals to legal representative and other relevant services, and reminders of court hearings.
The overall process sought to demonstrate what level of compliance a supervision program could achieve, and to hone in on what kind and specifically how much supervision might be appropriate for different statuses of noncitizens. The exploration of alternatives to detention through supervision programs are very important not only for improving compliance rates, but also to improve INS capacity for case management and strategic planning.
- Reducing reliance on detention and using it only when necessary would allow the INS to treat each noncitizen more fairly and humanely. Alternative community-based approaches: a) avoid the harms of detention; b) reduce exposure to overcrowding; and c) enable greater access to programs that support health and welfare.
- Findings suggest that about 90% of supervised noncitizens appeared in court compared to 71% of nonparticipants.
- Intensive AAP supervision had the greatest effect on undocumented workers. The numbers ranged from 88% for undocumented workers while the comparison group appeared only 59% of the time.
- Regular AAP supervision was especially effective for criminal aliens and asylum seekers. However, there was little difference for undocumented workers between regular participants and nonparticipants.
- AAP supervision almost doubled the rate of compliance with final orders. Specifically, participant asylum seekers criminal aliens, and undocumented workers all complied at higher rates than the equivalent comparison groups.
- Alternatives are more affordable than detention. Compared to detention, the cost of supervision is 55% less for asylum seekers and 15% less for criminal aliens. Under the system at that point in time, however, undocumented workers costed more to supervise than to detain – but the expense would be less if the court process were expedited for this group. Specifically:
- It costs the INS $3,300 to supervise each asylum speaker who appears for hearings compared to $7,300 per detained individual;
- For criminal aliens, supervision costs $3,871 compared to $4,565 per detained individual.
- The underlying factor in Vera’s high appearance rates was the strength of family and community ties.
For all countries around the globe, the regulation of migration is a core function of modern governments. As the governance of migration entails the implementation of a range of systems to govern the movement of foreigners on a nation’s territory, such governance must be willing to evolve and fluidly respond to changes based on migration patterns and the general make-up of migration populations. Given that the United States has more immigrants than any other county in the world, the United States was the logical choice to execute a comprehensive case study about the governance of migration within its region. According to the Migration Policy Institute (MPI), it is well documented that the number of immigrants residing in the United States from 1850 to present has sharply increased. From the 1970s to 2017 alone, immigrants residing in the United States accounted for 10% of the total United States population and increased to about 44%, respectively. Concerning the regulation of migration, such an issue elicits an important question at the forefront: how can a nation – or in this case the United States – ensure that every individual or noncitizen facing the threat of removal will appear at court appointments and leave the country if directed to do so? Of course, the use of immigration detention has been growing and has become a core element for governments striving to control its borders. However, the reality is that the use of detention centers is neither just nor humane, especially since those that are in removal proceedings are desperately trying to escape from their own countries ravaged with hostile conflict, human rights violations, persecution, and poverty due to widespread political and economic instability. Undoubtedly, such a predicament increasingly makes the issue and situation difficult and dire for the individuals.
The Vera Institute of Justice was contracted by the INS to explore supervision in the community as an alternative to detention. Given Vera’s forty years of experience piloting transformative solutions in partnership with the government, this nonprofit organization designed, implemented, evaluated, and spearheaded a community supervision program called the Appearance Assistance Program (AAP). The AAP was a three-year program that began operating in February 1997. The primary objectives of this program were to gauge whether community supervision alternatives were more successful with 1) getting those in the release process to appear at required court hearings, and 2) comply with the court’s final orders. Further, the INS and Vera sought to learn more about what kind of compliance the community supervision program could achieve, and to assess the level of supervision that may be most appropriate for different types of noncitizens such as asylum seekers, persons convicted of crimes (criminal aliens), and undocumented workers apprehended at work sites. The AAP was implemented within New York City and the program supervised 534 total participants – 165 at the intensive level and 369 at the regular level. Through the pilot and evaluation of AAP, Vera and the INS gained useful information concerning the viability of the community supervision alternative, the appropriate mechanisms and costs associated, and allocating detention spaces more efficiently.
According to the International Detention Coalition (IDC) handbook, There are alternatives, “immigration detention is used by governments as both a migration governance tool and as a political tool.” As a migration governance tool, detention is used to manage irregular migration ranging from limiting entry of irregular migrants to the territory and holding individuals without a valid visa during assessment. Alternatively, detentions are used as a political tool to address broader social and political issues; namely, deterring future irregular migrants in efforts to reinforce the idea of control over border for citizens, and to respond to political pressures. The IDC poses that “the use of detention for the purposes of deterrence or political gain is inconsistent with international human rights law.” Given that human rights law clearly establishes the right to liberty and protection from arbitrary detention, the use of detention must comply to the circumstances outlined in law, otherwise it interferes with an individual’s human rights. Rather than detention being applied en masse – which is quite evident today – detention should only be used for necessary cases. In the context of the US, the US incarcerates more people than any other country in the world. The front webpage on the Vera Institute of Justice notes, “In its scale and brutality, the American justice system is a global aberration.” Consequently, the US must be a beacon on the issues of human rights. Agents and activists for democratic change around the globe draws on the US for inspiration and support. However, since the Bush and Trump administration has further damaged the credibility of US democracy advocates by undermining the US’ status as a symbol of democracy and human rights, it begs the question: how can a country that abuses human rights at home tell other countries how to behave? In essence, this democratization effort of exploring alternatives to detention further attributes and ensures that our policies and actions match our values.
The Appearance Assistance Program (AAP) under the Vera Institute of Justice was a project funded by the United States Immigration and Naturalization Service (INS). In the course of the three-year period, the AAP had to evolve in response to changes in immigration law; specifically, through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) and changes in INS priorities. As the new law created a series of procedures concerning expedited removal, it directly affected the pool of criminal aliens eligible to apply for the program, and slightly shifted the overall screening process. Thus, the INS had a major role in considering which individuals where approved or restricted from participating in the program. Further, the INS served as one of the primary sources of data through the Deportable Alien Control System (DACS) database to understand current figures for the appearance and completion rates for each group. Moreover, internal stakeholders such as supervisors, multiethnic translators, and field staff that helped navigate the process and sought to keep participants in compliance with their obligations to both the program and the immigration court made it possible to effectively achieve success. Lastly, the program formed a national advisory board concerning experts in immigration, pretrial services, and research methodology.
Vera, from the very beginning, sought out a diverse representative collection of stakeholders with emphasis on actors beyond the immediate circle of Vera partners and the INS. One eligibility criterion that Vera considered for individuals was whether they had family in the New York area. The strength of family and community ties were considered factors by the program screeners because it indicated an incentive to comply with the AAP procedures and with the immigration process. If a participant was absent of any family in the area, the program implemented a key strategy of enlisting guarantors to encourage compliance with the program’s guidelines. Simply, a participant’s guarantor was tasked with upholding the moral – though not legal nor financial – responsibility for making sure the participant fulfilled all obligations. Of important note, the procedures required that the family guarantor be a United States citizen or lawful permanent resident. Thus, the AAP drew on civil society actors by recruiting representatives of community-based organizations to serve as guarantors. AAP representatives made it a priority to first look for organizations that represented populations that the AAP served like immigration organizations, and consequently hone in on those that provide legal and social services. Specifically, these guarantors had the responsibility of keeping in contact with participants and giving reminders of upcoming court dates. Moreover, other important external state actors that contributed to the program aside from the INS included US immigration judges and immigration authorities.
While building up the community-based capacity, the AAP did not neglect establishing strong relations with other important actors. As part of the program, providing support and assistance facilitated by the Resource Center played a major role. Vera staff provided general information about community support concerning referral to legal professionals, food banks, English language courses, health clinics, and other social services. While Vera was unable to supply participants with legal advice, they were able to correct misinformation. This proved to be very important, especially since many asylum seekers and undocumented immigrants lacked the basic knowledge about how the system operated. Having both the state and community-based local actors made the AAP much more effective because all actors collectively contributed to understanding the participants’ vulnerabilities, strengths, risks, and helped identify what kind of support each participant needed to ensure well-being and timely case resolution.
Vera developed an original methodology for implementing the AAP and achieving its goals. The INS stated in a report that in 1996, “only half of non-citizens released from detention appeared for their hearings and only eleven per cent of non-detailed aliens with final removal orders complied with such orders.” As such, the AAP was designed as a means to increase compliance and appearance rates of noncitizens. In doing so, Vera implemented the AAP that supervised more than 500 participants. The first part of the strategy started with pre-program screening. The potential participants that were screened were from either John F. Kennedy Airport; the INS principal office in New York City, and; the Varick Street detention center. Before participants were admitted into the AAP, each participant needed to be recommended. Further, each participant needed a satisfactory score on screenings based on the following factors: 1) public safety and compliance with prior appearance requirements; 2) a verified resident in the New York metropolitan area; and 3) a strong family tie or a guarantor who agreed to maintain regular contact with the participant to encourage overall compliance. Thereafter, once accepted into the program, participants were introduced to the supervision phase. The AAP had two groups – those under ‘regular’ supervision and those under ‘intensive’ supervision. Under ‘regular’ supervision, participants were paired with supervision and field staff to help them navigate the court process, keep participants in compliance with their stated obligations, and to monitor the overall progress of participants as they moved through the hearing process. Alternatively, ‘intensive’ supervision participants had a more stringent experience where it required them to participate in mandatory reporting requirements in person every two weeks, by telephone twice every week, being available for home visits once a month, and frequent checks on whereabouts. At this point, participants attended an orientation session to learn about the basic rules and conditions of the program, information and resources about the legal process, and referrals to legal and social services. Furthermore, information concerning the consequences of failing to comply with the stated obligations of the AAP which depended on the severity of the violation and the participant’s prior history was included. Repercussions included sanctions such as verbal warnings, increases to the reporting schedule, and the ultimate penalty of re-detention and termination within the program. The key difference between the two groups were that those under ‘regular’ supervision were not subjected to mandatory reporting requirements aside from orientation, and re-detention was not used in their case.
The AAP had a powerful impact in New York City when the project became operational in February 1997 and ended in March 2000. As one may recall, Vera sought to test whether community supervision could improve rates of appearance and compliance without increasing reliance on immigration detention. Based on the results, the findings suggest that the AAP demonstrates that the INS does not have to detain all noncitizens in order to ensure very high rates of appearance at court hearings. Strikingly, 91% of those eligible under the intensive supervision program appeared for all of their hearings. Further, the rates of appearance by undocumented workers were 88% and criminal alien’s appearance rate were 94%. As such, it’s evident that the effect of intensive supervisions is more dramatic for undocumented workers because they have fewer incentives to comply on their own. The opposite is true that the effect is less dramatic for those with greater incentive to comply which are the asylum seekers hoping to get protection from the U.S justice system.
Correspondingly, the impactful results suggest that the INS do not have to detain all noncitizens to secure high rates of compliance under the AAP. Not only is the compliance rate significantly higher compared to other alternatives to detention such as bond or parole, but all groups – asylum seekers, criminal aliens, and undocumented workers – accounted for higher rates than their comparison group (consisted of those not enrolled in the program). Notably, the difference is significant for the undocumented workers group where the numbers ranged from 88% for undocumented workers compared to 59% for the comparison group. Moreover, the results also provide evidence that certain noncitizens fare better in terms of higher appearance rates with the regular program rather than the intensive program. Specifically, criminal alien participants under the regular program appeared at a rate of more than 90%, which is significantly better than 82% achieved by the comparison group members.
The final results must also reflect the concerns of the cost-effectiveness of the AAP relative to that of detention, and to release on parole or bond. The findings suggest that the intensive supervision group for both asylum seekers and criminal aliens is a more cost-effective alternative. The results estimate that it costs the INS $7,300 per asylum seeking individual that’s detained throughout proceedings, and $4,223 for being detained and later paroled/bonded out, while those detained and later supervised costs $3,310. For criminal aliens, it would cost INS approximately $4,575 compared to $3,871 per individual. However, undocumented workers are the exception. Notably, it costs the INS $1,098 for an undocumented worker to be detained throughout proceedings compared to $3,809 for being detained and later supervised under the AAP. However, the results suggest that by “organizing an expedited court process for those eligible only for voluntary departure, and by maintaining a capacity to redetain those at risk of absconding” it would improve the cost-effectiveness of the supervision AAP option.
Analysis of the overall impact of AAP
Increased and strengthened community-based and familial tie in the United States accompanied by legal counsel promotes compliance with hearings
At face value, a strong community and familial foundation increases participants’ access to information and provides a form of support that they can lean on. As such, the support ensures that participants have various options and are truly able to make informed decisions. Of course, a vital component of relaying information is not just simply the act of telling participants but also verifying the fact that the information is fully comprehended. Further, accounting for the gaps in information mitigates the risks of the multitude of misinformation noncitizens absorb through coyotes or other detainees. However, implementers must be cognizant and recognize that there are many areas in the country where state-funded legal aid or pro bono legal services are unavailable.
Increased capacity of translation language services and guarantors with a cultural connection with participants promotes higher rates of appearance and compliance
Through the AAP, guarantors were typically volunteering from community-based organizations that had direct ties to immigration work. Participants are more willing to trust and feel more comfortable with a guarantor or staff member they develop a relationship with. Further, participants are more inclined to share personal circumstances that may threaten to prevent participants from fulling their obligations with a staff member they can trust. In identifying such factors, the participant and the staff can collectively work to mitigate the risks by developing appropriate supervision strategies to correspondingly encourage compliance
Increased awareness of incorporation of diverse and multiethnic staff promotes inclusion and increases compliance
For this case, the AAP was implemented in the New York metropolitan area where there is an abundance of cultural diversity. This is very important because the reality is that the noncitizen population is not a monolith. Operating in such areas where there is multicultural and multiethnic diversity makes it easier for Vera to find the necessary language interpreters, multiethnic staff, and community contacts to really connect and develop relationships with the participants to identify their constraints and needs. This lesson played a beneficial role in the program’s success as it was extremely valuable.
Supervision alternatives gives the INS a greater capacity to manage its caseload, both through the hearing process and beyond.
As described above, the AAP ensures that participants have access to information about the immigration process and social services. As such, supervision alternatives contribute to fair and timely case resolution by identifying and addressing participants’ barriers to working on shared solutions. Furthermore, the AAP also ensures that the government has updated and relevant information about the participant. Thus, such information would include contacts of family members obtained during the AAP program which would make it easier to re-detain participants if necessary.
Reducing reliance on detention promotes human rights by treating noncitizens more fairly and humanely
It’s an undeniable fact that the use of immigrant and asylum detention interferes with human rights, harms health and well-being across all spectrums, and causes unnecessary human suffering. Specifically, research demonstrates that being detained is associated with poor mental health including high levels of anxiety and depressions, Post-Traumatic Stress Disorder, and a poor quality of life. As such, detention should be used only as a last resort for exceptional cases that determines that all other options will not address the identified concerns. Moreover, alternative approaches: a) avoids the harms of detention; b) reduce exposure to overcrowding; and, c) enable greater access to programs that support health and welfare.
Next Steps Moving Forward
The AAP is undoubtedly a project that serves to create change and promote alternatives to detention so that a nationally replicable model may be implemented. With that being said, it is important to emphasize the fact that the AAP does not propose to eliminate detention facilities entirely. Rather, AAP hopes to fundamentally change the extent of how the utility of detention should only be as a last resort. As the full report states, “We recommend that the INS implement supervised release program in several districts in preparation for a nationwide supervision program.” As such, the case study suggests that there is more to learn concerning the effectiveness of supervision community-based alternatives in different locations. Thus, it would be instrumental to continue this project in other conducive areas where support and awareness could be built in efforts to promote alternatives to detention.
Although migrants, civil society and the government share an interest in promoting fair and humane immigration practices, gaining national traction has proven to be difficult. Precisely, such movements to shift away from immigration detention exists, yet the prevailing influence and momentum such movements hope to garner significantly falls short and fails to reach the eyes and ears of citizens throughout. So, the question remains: given what we know about the outcomes of this pilot, what steps can be taken - aside from piloting in different locations – to be most effective? Although the AAP conducted interviews with individuals to better understand the participant’s experience with the program, the program severely lacked placing their voices, experiences, and opinions at the center to ensure transparency and accountability. Thus, more initiatives need to be taken to amplify and highlight the voices of the participants to improve the outcome of demonstrating the viability of the community supervision alternative. Although the power of social media wasn’t yet realized when this program was implemented, it doesn’t mean that it’s too late to use the power of online tools and social media to increase sustainability in efforts to preserve the project results and to further strengthen future pilot programs. It is crucial to leverage, share, and document the stories and voices that went through this program to strengthen the gap by establishing a presence via inspirational videography and social media like Twitter, Facebook, and Instagram. This is precisely how we can understand migrants’ own experiences, perceptions and behaviors and how it has influenced their ability to engage with the immigration procedures to ensure that noncitizens appear at court hearings and comply with the court’s final orders.
As the Vera Institute of Justice is a rare example of an impartial non-governmental entity in the immigration field, such an organization has the capacity to implement an AAP autonomously without governmental partnerships. Thus, a strong case can be made to suggest that taking the autonomous approach could improve outcomes. The primary benefits of governmental partnerships are: (1) they could manage supervision internally, and (2) Vera reduces the administrative inefficiencies of making the initial detain or release determination which is important because it would require INS’s approval before moving on to the next step if chosen to work independently. Despite having to deal with these tradeoffs, a shift towards implementing the AAP autonomously can potentially impact noncitizens’ behavior in a way that increases court hearing attendance and comply with court’s final orders.
Lastly, moving forward there has to be a cohesive effort to facilitate efforts to foster solidarity and coalition building amongst civil society, non-governmental organizations, and immigration and human rights activists that hopes to see the passage of legislation. Efforts through a national convention where various stakeholders and civil society-based organizations could congregate can forge inextricable links of networks that facilitates information flow and cooperation on a local and national scale. As it stands, Vera is one of the few NGOs that effectively, and closely partners with the government; thus, Vera must continue to work and build off this case and leverage the forty years of experience working on transformative solutions to improve justice systems that ensure fairness and safety of communities.