The Trump Zero Tolerance Policy: A Cruel Approach with Humane and Viable Alternatives

Background

In April 2018, the Trump administration announced a so-called “zero tolerance” policy on unauthorized immigration. Under this policy, each and every migrant – including asylum seekers – attempting to cross the U.S. border anywhere other than at an official port of entry was to be detained and criminally prosecuted. This approach meant the systematic separation of newly arriving adult migrants from children who had accompanied them if those migrants were crossing into the United States without authorization (and outside of official ports of entry).[1]

The zero tolerance policy is fundamentally cruel, and there are clear indications the administration is still pursuing a family detention option...

Thousands of children were separated from their parents, and, following intense public outcry, the administration halted family separation and has sought instead to detain migrant families together – a move that has been subject to legal challenge and has yet to move forward.[2] 

The Trump administration’s current policies in this area are far from clear, though criminal prosecution and detention continue to be key administration tools in a policy of deterrence. There are clear indications that the administration is still pursuing a family detention option,[3] which could also apply to families that seek asylum at ports of entry. However, the administration has also indicated that immigrant parents apprehended with children under five would be tracked with ankle monitoring bracelets.[4] And policies with respect to those children over five have not been clarified.[5]

Beyond these measures, the Trump administration has imposed further deterrents to making application for asylum. For example, asylum seekers have been forced to wait on the Mexico side of the U.S.-Mexico border for days, due to the claim by border agents that ports of entry are at full capacity.[6] Reports indicate that, in some cases, border agents have told migrants that the United States is no longer accepting asylum seekers in general or from a particular country.[7]

 

The zero tolerance policy: Cruel, in conflict with U.S. international obligations and U.S. policy, costly, and of uncertain deterrent effect

For both adult migrants and their children, detention can be a major contributing factor to mental deterioration, despondency, suicidality, anger, and frustration...

The zero tolerance policy is fundamentally cruel: RI is particularly concerned about continued efforts by the administration to secure judicial authorization of long-term “family detention.” For both adult migrants and their children, detention can be “a major contributing factor to mental deterioration, despondency, suicidality, anger, and frustration.”[8] A recent ProPublica report only heightens those concerns with respect to children. ProPublica examined police reports and call logs from the last five years related to 70 immigrant detention facilities that house children and details reported sexual abuse and exploitation against migrant children.[9]

But RI concerns about the impact of detention go beyond its impact on children, in light of troubling reports about detention conditions generally. In 2017, U.S. federal investigators documented infractions at four of five audited detention centers. Investigators found “evidence of systematic and suspicionless strip searches, rotten food, and moldy bathrooms, the misuse of segregation, the denial of communications, and long delays for medical care.”[10] Another report documented 800 cases of abuse in 34 different detention facilities occurring since the beginning of the Trump administration. Many incidents included slurs or abusive actions by staff rooted in migrants’ race or ethnicity, religion, sexual orientation, gender identity, or disability.[11]

The policy is in conflict with U.S. international obligations and U.S. policy: RI is also concerned that the Trump administration’s zero tolerance policy runs afoul of the United States’ obligations under Convention Relating to the Status of Refugees and its Protocol. In particular, the Refugee Convention’s Article 31 states that: “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened…enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”[12] The policy of detention and prosecution of all who enter without authorization clearly conflicts with this provision.

...the Refugee Convention provision recognizes that those fleeing persecution should not be treated punitively, and that recognition is also reflected in U.S. policy.

In essence, the Refugee Convention provision recognizes that those fleeing persecution should not be treated punitively, and that recognition is also reflected in U.S. policy. In particular, an Immigration and Customs Enforcement (ICE) directive provides that the government is to consider each asylum applicant’s eligibility for parole, based on the facts of the individual’s case. In particular:

[W]hen an arriving alien found to have a credible fear [of persecution] establishes to the satisfaction of [Detention and Removal Operations] his or her identity and that he or she presents neither a flight risk nor danger to the community, DRO should, absent additional factors…parole the alien on the basis that his or her continued detention is not in the public interest.[13]

Indeed, the administration’s failure to implement this provision has been subject to judicial challenge. In March 2018, lawyers representing a group of detained asylum seekers filed a lawsuit arguing that the Trump administration is now engaging in systematic detention rather than applying the Parole Directive. The suit presented evidence that that parole rates under the Trump administration have decreased from over 90 percent to “nearly zero.”[14] The District Court for the District of Columbia recently agreed, holding that the Parole Directive “has been honored more in the breach than the observance.” The court issued a preliminary injunction, ordering the Trump administration to comply with the Parole Directive and to provide individualized parole determinations while the litigation is being resolved.[15] As of this writing, it was unclear how the administration would respond to this decision, which applied to five ICE field offices.[16]     

The policy is very expensive:  It has been estimated to cost about $208 per person per day to hold an immigrant in immigration detention.[17] An average of 51,379 people are projected to be in immigration detention every day during fiscal year 2018, and the average stay for a detainee is 44 days. A bed in one of the so-called “tent cities” that have been used to house migrant children can cost up to $775 per child per day.[18] In the two month period between mid-May and mid-July, housing detained child migrants was estimated to have cost the government about $1.5 million per day.[19]

The administration has already reallocated funds from other important federal health programs to pay for the zero tolerance policy. The Department of Health and Human Services is slated to reallocate over $200 million in discretionary funding, funds that would have been available for other priorities such as rural health programs and public health emergencies.[20]

The uncertain deterrent effect: Make no mistake: cruel and inhumane policies are unacceptable whether or not they have a deterrent effect on the ability of victims of persecution to seek asylum in the United States. But it is far from clear that the zero tolerance policies will in fact have the impact sought by the Trump administration. An iteration of “zero tolerance,” Operation Streamline has been implemented in Texas, Arizona, and parts of California. It was first tested in 2005 in Del Rio, Texas, with the aim of deterring unauthorized border crossing.[21] By 2015 however, “the Inspector General of Homeland Security declared the program increased the workload for Border Patrol agents, yet the agency could not prove it had any effect on illegal border crossings.”[22] In 2018, the Vera Institute of Justice echoed that conclusion, noting that there is ‘“no evidence to suggest that Operation Streamline had any impact on migrants’ decisions to enter the United States.”’[23] A study focusing on Mexican migration to the United States also found little deterrent effect from more restrictive immigration policies.[24] And a recent report from the Washington Office on Latin America examining border crossing trends as far back as 2000 concluded that “the numbers…don’t show a deterrent effect.”[25]

 

Humane and Viable Alternatives to Detention

In light of both the enormous human and other costs of current practices – not to mention their failure to achieve immigration control objectives – it is incumbent upon policymakers to consider alternatives to detention. There may be no single alternative that, by itself, will achieve critical human rights and enforcement goals, but there is powerful evidence indicating that a combination of alternatives could provide far greater possibilities to do so than current efforts of the Trump administration.

In light of both the enormous human costs of current practices – not to mention their failure to achieve immigration control objectives – it is incumbent upon policymakers to consider alternatives to detention.

In fact, in the face of public outrage and legal obstacles to the zero tolerance policy, the Trump administration is already implementing one alternative of sorts – the use of ankle monitoring bracelets to track immigrant parents encountered after entry and who have with them children under five.[26] But rather than moving forward in an ad hoc manner, the administration would be better served by a more coordinated effort to implement alternatives.

The analysis below regarding alternative to detention (ATD) models borrows from the structure provided in a blog from the Cato Institute.[27] Options include, inter alia, the Intensive Supervision Appearance Program (ISAP), the Family Case Management Program (FCMP), community case management programs, and release on recognizance or on bond. Most ATD models have been implemented on a modest scale and scaling them up would of course pose challenges. But the potential benefits would be enormous. 

Intensive Supervision Appearance Program (ISAP): ISAP has been administered by a private company called Behavioral Interventions (BI), a subsidiary of GEO Group.[28] Program participants are tracked via supervision checks, unannounced home visits, phone calls using biometric voice software, and ankle location monitoring devices.[29] The appearance rate at immigration hearings for those in ISAP has been cited at 99.6 percent, and ICE has estimated that the average cost per-person-per-day to be around $4.50.[30]

To be sure, ISAP has raised concerns that would have to be addressed before it was expanded. A recent report by Rutgers School of Law and the American Friends Service Committee, Freed but not Free,[31] details a number of incidents that suggest the program is run with little consistency or transparency. The report points to unclear standards for assigning participants monitoring bracelets, inconsistent and confusing check-in schedules, challenges in proving proof of check-in, painful monitoring devices, and other serious deficiencies.[32] Participants and their lawyers have also reported electrocution and burns to the wearer when the electronic monitoring devices overheat.[33] Again, these serious problems would have to be addressed before considering the expansion of this program.   

Family Case Management: ISAP is currently the only version of an ATD funded by the U.S. government. However, this has not always been the case. Beginning in 2016, the Family Case Management Program (FCMP), also administered by GEO Group, paired case workers with undocumented immigrant families to ensure compliance with hearing appearances and orders. This program did not require participants to wear an electronic monitoring bracelet. According to ICE’s own report, the court appearance rate among the entire 954 participants over two years was 100 percent.[34] Case management included connections to legal services – a critical component in navigating the asylum process. While the FCMP was eliminated in mid-2017 by the Trump administration, which cited cost concerns, it appears to be significantly cheaper than detention on a per case basis.[35]

FCMP, which supervised participants across five locations[36], has the potential to be expanded and brought to scale through a diversification of partnerships. For instance, community service organizations like Lutheran Refugee and Immigrant Services (LIRS) have strong interest in – and have previously applied for funding to run – the FCMP program. The LIRS proposal actually received the highest quality rating during the grant consideration process.[37]

Community Management programs: Community case management programs are virtually identical to FCMP in terms of services provided. The difference is that community case management has historically been run by community-based non-profits. LIRS piloted a program that provided case management services to individual unauthorized immigrants between January 2012 through December 2015. The program in all had 214 participants. It cost on average $24 per-person-per-day and had a 97 percent appearance rate. In this case, one day of detention for one person would equal the cost of 8.5 days in the LIRS pilot program. A similar program run by Catholic Charities of New Orleans between 1999-2002 supervised 103 participants. This program cost $1,430 per participant per year and also boasted a 97 percent appearance rate. [38]

Release on recognizance or on bond: A multifaceted immigration enforcement program should also include release of asylum seekers when officials are confident that the individual is not a flight risk and does not pose a danger to the community. Moreover, even in circumstances where release on recognizance (that is, with a promise to appear) is deemed too risky, release on bond ought to be considered.

 

The Way Forward

In light of the financial, legal, and ethical obstacles to a zero tolerance policy, the U.S. government must more readily embrace ATDs. The options described in this paper should be explored and expanded by the administration on an urgent basis, and the administration should seek the active engagement of civil society. Such an approach would most effectively vindicate both protection and enforcement equities, and be far more consistent with the principles that should inform any U.S. policy toward migrants and asylum seekers.

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Editor’s Note: In this piece, the analysis regarding alternative to detention models borrows from the structure provided in a blog from the Cato Institute.[39]

Hayley Drozdowski and Fiona Chong of Refugees International contributed to this brief.

Cover Photo: AP Photo/Hans-Maximo Musielik

____________________

Footnotes

[1] There were also reports that migrants arriving with children at official ports of entry were in some cases also detained and separated from the children, although it is not clear how frequently this occurred. Lind, Dara. “The Trump administration’s separation of families at the border explained.” (Vox, June 15, 2018). https://www.vox.com/2018/6/11/17443198/children-immigrant-families-separated-parents.  

[2] Trump, Donald. “Affording Congress an Opportunity to Address Family Separation.” (June 20, 2018). Whitehouse.gov. July 27, 2018. Retrieved from https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/?utm_source=twitter&utm_medium=social&utm_campaign=wh. Under the Flores Settlement, detention of children beyond 20 days has effectively been prohibited.

[3] Hay, Andrew. “Judge rejects Trump request for long-term detention of immigrant children.” (July 9, 2018). Reuters. https://www.reuters.com/article/us-usa-immigration-ruling/judge-rejects-trump-request-for-long-term-detention-of-immigrant-children-idUSKBN1K002N.

[4] Chen, Angela. “How do Angle Monitors Work? Migrant Families will have to Wear them After Getting Released.” (Bustle.com, July 11, 2018).. https://www.bustle.com/p/how-do-ankle-monitors-work-migrant-families-will-have-to-wear-them-after-getting-released-9723769.

[5] Hennesey-Fiske, Molly et. al. “Some migrant children are reunited with parents as Trump administration misses court deadline.” (Los Angeles Times, July 10, 2018). http://www.latimes.com/local/lanow/la-me-deadline-separated-20180710-story.html.

[6] Driver, A. Scenes from a Migration Crisis--On Both Sides of the Border. (National Geographic, (2018). https://www.nationalgeographic.com/photography/proof/2018/06/mexico-immigration-children-parents-border-separation-culture/; Burke, T. (June 20, 2018). Chaos and Cruelty for Immigrants Held in Brownsville, Texas. https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/chaos-and-cruelty-immigrants-held-brownsville

[7] Lind, D. Trump keeps making it harder for people to seek asylum legally. (Vox, June 5, 2018).  https://www.vox.com/policy-and-politics/2018/6/5/17428640/border-families-asylum-illegal

[8] “The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families: A Report for the Inter-American Human Rights Court.” (Boston College, August 2013). https://www.bc.edu/content/dam/files/centers/humanrights/doc/IACHR%20Report%20on%20Pyschosocial%20Impact%20of%20Detention%20%20Deportation-FINAL%208-16-13.pdf, page 4.

[9] Grabell, Michael and Sanders, Topher. “Immigrant Youth Shelters: ‘If You’re a Predator, It’s a Gold Mine.” (ProPublica, July 27, 2018). https://www.propublica.org/article/immigrant-youth-shelters-sexual-abuse-fights-missing-children.

[10] Macaraeg, Sarah. “Problems at Otero County ICE detention center audit.” (Icsun News, December 23, 2017). https://www.lcsun-news.com/story/news/local/new-mexico/2017/12/23/problems-otero-county-ice-prison-found-audit/978394001/.

[11] “Persecuted in U.S. Immigration Detention: A National Report on Abuse Motivated by Hate.” (Freedom for Immigrants, June 2018). https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5b3174e46d2a73f2d1f56aab/1529967847644/FFI_NatReportAbuse_062518.pdf.

[12] Convention Relating to the Status of Refugees, Article 31. 

[13] Immigration and Customs Enforcement, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture. (December 8, 2009).  Para. 6.2.

[14] See Damus v. Nielsen, Civil Action No. 18-578 (JEB), July 2, 2018.

[15] See Damus v. Nielsen, Civil Action No. 18-578 (JEB), July 2, 2018.

[16] See Center for Gender and Refugee Studies and Human Rights First, Practice Advisory: Damus v. Nielsen: Parole of Arriving Asylum Seekers Who Have Passed Credible Fear. (American Civil Liberties Union, July 30, 2018).

[17] National Immigration Forum, “The Math of Immigration Detention, 2018 Update: Costs Continue to Multiply.” (May 9, 2018). https://immigrationforum.org/article/math-immigration-detention-2018-update-costs-continue-mulitply/

[18] Urbi, Jaden. “This is how much it costs to detain an immigrant in the U.S.” (CNBC. June 20, 2018). https://www.cnbc.com/2018/06/20/cost-us-immigrant-detention-trump-zero-tolerance-tents-cages.html.

[19] Diamond, Dan. “Trump’s migrant fiasco diverts millions from health programs.” (Politico, July 18, 2018). https://www.politico.com/story/2018/07/18/trump-migrants-health-programs-692955.

[20] Ibid.

[21] Isacson, Adam; Meyer, Maureen; Hite, Adeline. “WOLA Report: The Zero Tolerance Policy.” (WOLA, July 16, 2018). https://www.wola.org/analysis/wola-report-zero-tolerance-policy/. Page 3.

[22] Burnett, J.  “The Last Zero Tolerance Border Policy Didn’t Work.” (emphasis added) (National Public Radio, June 19, 2018). https://www.npr.org/2018/06/19/621578860/how-prior-zero-tolerance-policies-at-the-border-worked

[23] Isacson, Adam; Meyer, Maureen; Hite, Adeline. “WOLA Report: The Zero Tolerance Policy.” (WOLA, July 16, 2018). Page 6. https://www.wola.org/analysis/wola-report-zero-tolerance-policy/.

[24] Cornelius, W. A., & Salehyan, I. Does border enforcement deter unauthorized immigration? The case of Mexican migration to the United States. Regulation & Governance, (1). (2007). Pages 139–153. https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1748-5991.2007.00007.x

[25] Isacson, Adam; Meyer, Maureen; Hite, Adeline. “WOLA Report: The Zero Tolerance Policy.” (WOLA.com, July 16, 2018). https://www.wola.org/analysis/wola-report-zero-tolerance-policy/. Page 5.

[26] Chen, Angela. “How do Angle Monitors Work? Migrant Families will have to Wear them After Getting Released.” (Bustle.com, July 11, 2018). https://www.bustle.com/p/how-do-ankle-monitors-work-migrant-families-will-have-to-wear-them-after-getting-released-9723769.

[27] Nowrasteh, A.  “Alternatives to Detention Are Cheaper than Universal Detention.” (The Cato Institute, June 20, 2018). https://www.cato.org/blog/alternatives-detention-are-cheaper-indefinite-detention. The options we have listed are drawn in large measure from this CATO report.

[28] Immigration Services. (2017). https://bi.com/immigration-services/

[29] ACLU. Alternatives to Immigration Detention: Less Costly and More Humane than Federal Lock-up. Washington D.C. (n.d.).  https://www.aclu.org/other/aclu-fact-sheet-alternatives-immigration-detention-atd

[30] Department of Homeland Security. U.S. Immigration and Customs Enforcement Budget Overview: Fiscal Year 2018, Congressional Justification.

https://www.dhs.gov/sites/default/files/publications/ICE%20FY18%20Budget.pdf, page 180.

[31] Rutgers School of Law-Newark Immigrant Rights Clinic and American Friends Service Committee. Freed but not Free. (Rutgers School of Law- Newark Immigrant Rights Clinic, 2012). Pages 1–58. http://lastradainternational.org/lsidocs/Freed%20but%20not%20Free.pdf

[32] Ibidf, Pages 16-18.
Other reports of problems with ISAP include: Townsend, E. “Private Contractor Makes Millions Off GPS Tracker for Immigrants.” (Memphis Flyer, April 7, 2016).  https://www.memphisflyer.com/memphis/the-shackle/Content?oid=4573743; Wolfe-Roubatis, E. “Violations of due process and liberty rights of asylum seekers by U.S. Immigration and Customs Enforcement through the use of the Intensive Supervision and Appearance Program (ISAP).” (April 20, 2016,). http://centrolegal.org/wp-content/uploads/2016/05/Complaint-to-OCRCL-Cover-Letter.pdf; “Alternatives to Detention.” (n.d.).  https://www.detentionwatchnetwork.org/issues/alternatives

[33] “Violations of due process and liberty rights of asylum seekers by U.S. Immigration and Customs Enforcement through the use of the Intensive Supervision and Appearance Program (ISAP).” http://centrolegal.org/wp-content/uploads/2016/05/Complaint-to-OCRCL-Cover-Letter.pdf. Pages 6-18.

[34]McCoy II, J. E. U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program Contract (Redacted). (Department of Homeland Security, 2017). https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-22-Nov17.pdf

[35] If one takes the $18,000 per individual cost from FCMP and divides that by the estimated $208 per day cost of detention for one person, one will find that an individual could be in the FCMP program for 88 days before it would equal the cost of detaining that person for one day; Nowrasteh, A. “Alternatives to Detention Are Cheaper than Universal Detention.” (The Cato Institute, June 20, 2018,). https://www.cato.org/blog/alternatives-detention-are-cheaper-indefinite-detention.     

[36] McCoy II, J. E. U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program Contract (Redacted). Department of Homeland Security. (2017). https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-22-Nov17.pdf. Page 7.

[37] McCoy II, J. E. U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program Contract (Redacted). (Department of Homeland Security, 2017). https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-22-Nov17.pdf. Page 3.

[38] American Immigration Lawyers Association. The Real Alternatives to Detention (No. 17071103). (2017). https://www.aila.org/infonet/the-real-alternatives-to-detention

[39] Nowrasteh, A. "Alternatives to Detention Are Cheaper than Universal Detention." (June 20, 2018). See footnote 27.