Immigration and Customs Enforcement should shift its model when processing non-criminal asylum seekers so as to assume Alternatives to Detention as the first-line response and to require that use of detention be justified by establishing that an asylum seeker constitutes a national security risk or a high risk of absconding.
The right to asylum is one of the key forms of legal protection that is offered to migrants arriving in the United States who have suffered persecution or face a risk of persecution in their countries of origin. To qualify for asylum, asylum seekers must be in the U.S. and must prove that they meet the definition of a refugee, as provided under the U.S. Immigration and Naturalization Act (INA) § 101(a)(42) (A) and (B) (1). The INA also establishes the process for applying for asylum, which is made up of both the “affirmative” and the “defensive” asylum application process. Applicants applying under the affirmative process must do so within one year of arriving in the country or demonstrate extenuating circumstances that delayed their application. Every day, approximately 1,400 non-criminal asylum seekers are detained in the U.S.; asylum seekers are typically detained by Immigration and Customs Enforcement (ICE) while undergoing the defensive asylum process.
The widespread use of detention is problematic because it violates the rights of asylum seekers and because of its excessive cost. The United Nations High Comissioner for Refguees (UNHCR) holds that as the majority of asylum seekers are not accused of having committed a crime, their detention violates the fundamental right to liberty and may be classified as arbitrary if not substantively justified by demonstrable risk. Any imposition of arbitrary detention violates the U.S. Constitution and thus must be highly scrutinized.
Detention is additionally problematic because of conditions in detention facilities; detained asylum seekers are often housed in jails or jail-like institutions and are treated as criminals, forced to wear prison uniforms, handcuffs, and sometimes even shackles. Furthermore, the use of detention is expensive, with an estimated base cost of $122 per detainee per day, and this estimate increases to $166 when operational costs are considered. Given the realities of limited government resources, such an expensive program should be critically examined and have to prove significantly higher success rates than less expensive alternatives in order to merit its implementation.
ICE should limit the detention of non-criminal asylum seekers in favor of Alternatives to Detention (ATDs). ATDs are preexisting, effective and less expensive than detention, and include measures such as telephone reporting, radio frequency, global positioning tracking and home visits. While the ICE has increased use of ATDs, the agency should shift its model so that ATDs are consistently explored as the first solution. Accordingly, the burden of proof must be shifted such that authorities have to justify the use of detention with evidence of security or absconding risks; under the current paradigm, asylum seekers must demonstrate that they are not a security risk or high risk of absconding in order to qualify for ATDs.
ATDs are less restrictive than detention and thereby constitute less of a violation of asylum seekers’ freedoms. Furthermore, daily ATD program costs are estimated to vary between $0.30 and $14 per day. ATDs are also proven to be effective, with a 93-98 percent immigration court appearance rate. Authorities could still detain asylum seekers with a criminal record or those that posed a demonstrable risk. Furthermore, the increased implementation of ATDs would free up funding that could be shifted to programs proven to effectively increase national security. Other critics may argue that ATDs continue to violate the human rights of asylum seekers and that all detention measures should be eliminated. Given current national security concerns, however, ATDs represent a more viable option and would be an important step toward improved protection. Opponents may also raise concerns about the economic self-sufficiency of non-criminal asylum seekers released and monitored through ATDs. These individuals could be regulated, however, by the same policies that already exist to govern the economic and employment status of the proportion of asylum seekers that are released into the community and are neither detained nor monitored through ATDs.