Immigration detention is the practice of holding individuals in government custody for immigration violations, such as illegal entry or visa overstay, during their removal proceedings. Notably, to remain in the United States without authorization is an administrative violation of the law. For this reason, immigration detention is civil in nature, and therefore distinct from criminal incarceration. Violators are subject to agency regulation and immigration law, rather than criminal constitutional law.
A Brief History of Immigration Detention in the United States
Detaining non-citizens is nothing new in the United States. About 20 percent of immigrants examined at Ellis Island were held temporarily for concerns including health and legal questions. Wide-scale detention of immigrants and asylum seekers began under the Reagan administration in response to an influx of asylum seekers from Central America and the Caribbean. Detention numbers grew again after mandatory detention provisions were added to the immigration laws in the late 1980s, and vastly expanded in 1996. During the first term of the Obama administration, an average of more than 30,000 immigrants were held in detention. This was an increase and the result of a “detention bed quota” imposed by Congress, and the enhanced efforts to target immigrants with criminal convictions, many of whom were subject to mandatory detention.
Although the immigration detention system has grown over the last decade, the Trump administration has significantly expanded this practice. The United States is currently detaining a record number of migrants—almost 50,000—at significant cost. This increase represents a shift toward interior immigration enforcement and detaining migrants crossing the border.
Mandatory vs. Discretionary Detention
Under immigration law, some non-citizens must be detained and remain in custody—known as mandatory detention—for the duration of their removal proceedings. According to the Immigration and Nationality Act, this happens in cases in which non-citizens have committed certain more serious crimes, such as drug violations, and are thus ineligible for release on bond. There has been a substantial amount of litigation over mandatory detentions, specifically as to which crimes make one eligible and how it intersects with criminal incarceration, among other issues. Because of differences in opinions from different federal circuit courts, the practice may vary in different regions across the country.1
In non-mandatory detention cases, the Department of Homeland Security has discretion over whether to detain an individual pending their removal decision. This practice, known as discretionary detention, is granted by the Immigration and Nationality Act, and allows DHS to continue detaining the individual or release them on bond or parole. People in immigration proceedings before an immigration judge who are not subject to mandatory detention may request a bond hearing.
How many people are in immigration detention?
The average daily detained population has been steadily increasing for decades over multiple administrations. Fiscal Year (FY) 2017 averaged 38,106 per day—a notable jump from the 6,785 FY1994 average. U.S. Immigration and Customs Enforcement (ICE) reported 49,447 adults in detention as of the week of March 22, 2019.
The number of initial book-ins, the first step of a new detention stay in ICE custody, was 396,448 in FY2018. Book-ins following arrest by Customs and Border Protection (CBP), which represents border apprehensions, were at 242,778 in FY2018—a significant increase from the 184,038 in FY2017, but in line with the 244,510 in FY2016. Book-ins following arrest by ICE, which generally represent U.S.-interior arrests, were at 153,670—an increase over the 139,553 in FY2017 and 108,372 in FY2016. ICE claims this increase correlates with an “ongoing surge in illegal border crossings.”
Since 2009, congressional appropriations funding for DHS has included language specifying the number of beds that may be filled in detention facilities. This “detention bed mandate” required ICE to fill a certain number of beds in detention facilities each night, in accordance with funding levels for the fiscal year. The mandate was a source of debate, as critics raised concerns about both the legality and cost-effectiveness of the program, especially after ICE received a rebuke from Congress in March 2018 for repeatedly requesting additional funding to expand the detention population beyond the congressionally mandated levels. However, the most recent congressional budget deal did not include a cap on beds, something that Democrats had been seeking.
ICC detains non-U.S. citizens in hundreds of different facilities. As of 2016, 10 percent of ICE’s detainee population resides in federally owned and directed facilities, 65 percent in facilities operated by private contractors, and 25 percent in facilities operated by public entities such as county jails. Use of facilities operated by private and public entities outside of ICE increases in periods of increased migrant flow. These diverse holding facilities have their own unique protocols and processes, making it difficult for detainees to navigate without uniform access to information about their rights or legal counsel.
ICE has used a two-part system to categorize this network of facilities. Until FY2018, ICE divided them into ones that held individuals for more than 72 hours and ones that held them for less than 72 hours. In FY2018, the agency replaced this categorization system with one that split the network into facilities that hold individuals for more than seven days and ones that held them for less than seven days. Figure 1 shows the components of this categorization system:
Figure 1: New Definitions of ICE Detention Facilities for FY2018
|Under Seven-Day Facilities|
|Over Seven-Day Non-Dedicated Facilities|
|Over Seven-Day Dedicated Facilities|
This decision largely reflects the agency’s effort to streamline the current detention system and improve its versatility in enforcement operations. As the agency noted, the decision to switch to under seven-day facilities will “significantly reduce transportation costs and provide greater flexibility in local detention and removal operations.” Not all individuals in custody for immigration violations are held in ICE or CBP detention facilities. Unaccompanied alien children processed by DHS are transferred to shelters operated by the Department of Health & Human Services (HHS) Office of Refugee Resettlement (ORR). HHS has been required to provide care for unaccompanied alien children since the Homeland Security Act of 2002.
ICE operates detention facilities under a set of guidelines known as the Performance-Based National Detention Standards 2011. These standards establish official ICE policy for the categories of: safety, security, order, care, activities, justice, and administration and management. In 2016, the standards were revised to ensure compliance with federal sexual assault and abuse and disability accommodation laws. Other 2016 reform areas included: communication assistance for those lacking proficiency in English, segregation management, discipline, medical standards, and suicide prevention. A January 2019 report by the DHS Inspector General found that ICE has not successfully monitored and enforced these standards.
Detention standards for unaccompanied children must be in accordance with the Flores Settlement Agreement of 1997. The Flores Agreement was the result of a class action lawsuit filed on behalf of unaccompanied children against the now-defunct Immigration and Naturalization Service. The agreement established the “general policy favoring release,” which instructs DHS to quickly release and reunify children with families or a community sponsor. Some of these requirements were superseded by Homeland Security Act requirements to turn over unaccompanied children to ORR as quickly as possible. Additionally, a 2015 ruling by the federal judge overseeing the Flores settlement said that all children, even when accompanied by a family member, could not be detained for more than 20 days—severely restricting ICE’s ability to detain family units.
Alternatives to Detention
ICE has the authority to use so-called “alternatives to detention,” or ATDs, which are less restrictive and may be more cost effective than traditional detention. ICE uses the Intensive Supervision Appearance Program to electronically monitor immigrants considered low security risks using ankle bracelets while they await trial. By the government’s own reporting, this program was far more cost effective than the use of detention. For FY2016, the average cost per day per person in this program was $5.16 per day, compared to $342.73 per day for family detention. However, ICE says that ATDs ultimately cost more per removal, because most people with them do not proceed through to removal. There have been reports of immigrants cutting off bracelets, but evidence suggests the monitors are largely effective at compelling immigrants to appear for their hearings.
For FY2019, the Trump administration’s ATD budget request was $184.4 million, an increase from $177.7 million in FY2018 and $126 million in FY2017. The Family Case Management Program, an ATD that allowed women and children asylum seekers to avoid being placed in detention, was ended by the Trump administration in 2017, despite a reported 99 percent compliance success rate. However, it was revived by the 2019 Senate appropriations bill, which allocated $30.5 million for ATD family case management programs and $40 million for ATD case management staff.