Alternatives to Detention: The Pros and Cons

There is a popular belief that when non-citizens and undocumented workers are detained for violating immigration laws, they remain in jail until an immigration judge allows them to stay or orders their removal from the U.S. But there are alternatives to detention, which can make life better – or worse – for individuals whom the U.S. government seeks to remove from the country. 

For the most part, the Office of Detention and Removal (DRO) detains those who are a threat to the public or national security, and those who must be detained under immigration laws (for example, individuals who were convicted of certain firearms offenses).  But ever since the DRO stepped up its enforcement strategies, it has started to run out of bed space in detention centers. The Department of Homeland Security (DHS) states that it arrests over 1.6 million non-citizens and undocumented workers every year.

Because of their tight budget and limited bed space, the DRO often relies on alternatives to detention, such as:

Release on an Order of Recognizance (ROR): The individual is released from detention under certain restrictions, including regular reporting to DRO officers and appearing at all immigration court proceedings. ROR is mostly for individuals who do not have the financial resources to post a bond, but do not pose a threat to the public or national security. If the individual fails to appear for a hearing, he or she will be ordered deported and will be subject to mandatory detention when arrested.

Appearance bond: This is more restrictive than ROR. The individual posts a bond of not less than $1,500 dollars, which is forfeited if he or she fails to appear in court as required or upon any other demand by the U.S. Immigration and Customs Enforcement (ICE).

Electronic Monitoring Devices (EMD): This requires the individual to wear a monitoring ankle bracelet or report by telephone to a case manager. EMD is designed to improve court appearance rates and prevent individuals who are ordered removed from absconding. This started out as a pilot program, but is now available nationwide. 

Intensive Supervision Appearance Program (ISAP): This pilot program is available to individuals who are not subject to mandatory detention; who are in immigration court proceedings or awaiting removal from the United States; who are residing within the managed area; and are unlikely to pose a threat to the public or national security. Participants are assigned to a case specialist who is responsible for monitoring them through an electronic monitoring device, home visits, work visits and telephone reports.

ISAP – Benefits and Controversies 

ISAP is now available in nine cities: Baltimore, MD; Delray Beach, FL; Denver, CO; Kansas City, MO; Miami, FL; Philadelphia, PA; San Francisco, CA; Portland, OR; and St. Paul/Bloomington, MN.

A private contractor, Behavioral Interventions (BI), operates ISAP. In Minnesota, the BI/ISAP office is located in the same building as the Immigration Court in Bloomington.

The DRO states that the primary goal of ISAP is to improve rates of appearance at hearings and compliance with immigration judges’ final orders. Yet the target groups for ISAP are quite broad. They include any adult over age 18, asylum seekers, individuals who are at low risk for violence or absconding, and individuals on order of supervision.

ISAP has three phases:

  • Phase one (“intensive phase”): This lasts for thirty days. The participant wears an electronic monitoring device (EMD) on their ankle, is subject to nightly curfews, and must report to the BI office three times a week. BI also visits participants’ home at unscheduled times and calls at certain times of the day to ensure they have not fled the area. If the participant complies with phase one, the EMD is taken off and he or she is moved to phase two.
  • Phase two (“intermediate” phase): There is no curfew, but the participant must report to BI one day a week. BI also conducts one home visit each month in a sixty- day period.
  • Phase three (“regular phase”): The participant reports to the BI office twice a month and remains on this phase until the court issues a decision or the DRO orders the participant’s release from ISAP.

For those who would otherwise be detained in jail, ISAP is a great alternative. The restrictions get fewer and fewer as time passes and as they comply with the requirements. Sometimes, however, the DRO applies ISAP to individuals who would normally be released without electronic monitoring or other restrictions, if ISAP did not exist. Also, some participants have problems complying with the requirements because they have work, school and family obligations, do not live close to the BI office, or have no reliable transportation to get to the BI office.

In one recent case, attorney Herbert Igbanugo challenged the DRO’s decision to place one of his clients into ISAP. Because the client has four children (two of whom have special needs), has no convictions, and has ties to the community, she offered to post bond instead of being placed into ISAP. When ICE refused the offer and placed the client into ISAP, Mr. Igbanugo requested a bond/custody re-determination hearing before an immigration judge. He also filed a habeas corpus petition and an emergency motion for a temporary restraining order with the federal district court, asking the federal judge to order ICE to release the client from ISAP. 

Eventually, the immigration judge ordered ICE to release the client from ISAP once she posted bond. When ICE reluctantly agreed to comply with the immigration judge’s order, Mr. Igbanugo agreed to drop the habeas corpus petition.  Still, ICE plans to appeal the immigration judge’s order to the Board of Immigration Appeals in an attempt to prevent nationwide repercussions that may result if others begin to challenge ISAP throughout the nine cities where DRO operates the program. ICE, in theory, could place the client back on ISAP if it wins on appeal. The client, however, may file another habeas corpus petition if that happens.


About Igbanugo Partners International Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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