Kate Evans & Robert Koulish
In summer 2018, the Trump administration ratcheted up its immigration enforcement and detention practices with new family separation and forced detention, as part of its “zero tolerance” strategy aimed at deterring asylum applicants from exercising their asylum rights under the 1980 Refugee Act. Part of its effort was to manipulate the immigration risk detention tool, known as the risk classification assessment, or RCA. The risk tool was designed during the Obama administration to reduce the arbitrary detention of immigrants by tailoring it to risk. A new investigation by Reuters reveals that the Trump administration eliminated the “release” recommendation from the RCA. With one-half of the detain/release binary gone, the unsurprising result is detention of more people without justification, subverting the purpose of the risk tool altogether.
The initial idea for the risk tool came in a 2009 expert report criticizing the Department of Homeland Security’s detention regime for treating immigrants as criminals and thereby subjecting them to custody at inappropriate rates in inappropriate conditions. DHS was also facing increasing scrutiny for the mounting deaths of immigrants due, in part, to poor physical and mental health care and poor screening mechanisms to identify individuals at risk of severe harm in detention. The RCA promised to make the use of immigration detention more uniform, transparent, and rational.
In 2012, the Obama administration piloted the RCA in several ICE field offices. By early 2013, DHS had launched the immigration risk calculator nationwide. The tool recommended whether a person should be detained or released from immigration custody, their bond amount, and their conditions of confinement or community supervision. The RCA was integrated into Immigration and Customs Enforcement’s intake process and was required for nearly all individuals arrested in the interior of the United States. Officers had to decide whether a person suffered from a special vulnerability that would make detention inappropriate and use a scoring system to determine whether her criminal history renders her a risk to public safety and whether her immigration history and community ties render her a flight risk. Based on this assessment of over 60 factors, the RCA generated one of four recommendations: detain in the custody of DHS (no bond), detain eligible for bond (with a recommended bond amount based on the RCA’s scoring system), supervisor to determine, or release.
That last and critical option of release was eliminated by the Trump administration. In a follow-up report by Vice’s Motherboard, an ICE spokesperson confirmed that men and women arrested for immigration violations will only be released by ICE if officers override the detention recommendation or if they fall into the bucket of scores that is given to the supervisor to determine in the first place.
With the release recommendation gone, ICE is detaining individuals whose lack of criminal history and strong community ties make them low risks to public safety and low risks for flight. We have no doubt that the Obama administration overused detention even with the RCA. Congress established bed quotas to ensure detention facilities were filled to capacity. But even then, with a release option intact, the RCA still recommended monitoring without detention for thousands of low-risk individuals.
The difference today is in economies of scale. Under Trump, new facilities are under order to be constructed to match zero-release strategies. Additionally, whereas under Obama categories of immigrants could be released in theory, the Trump administration has removed almost all hope. As the Reuters investigation shows, the Trump administration tripled detention for individuals with no criminal history. In addition, bond-hearing requests for individuals who make it that far are flooding the already backlogged immigration courts as more and more people eligible for release are detained instead.
The costs of the new policy are staggering. The Trump administration is blatantly violating the Constitution in its detention policy. Like the Obama administration before it, Trump administration officials said they would use detention as a deterrent to migration only to later disavow that policy or see it rejected by courts as unconstitutional. This legally problematic policy wastes taxpayer dollars at a price of $208 per night per person, and more than $3 billion a year. For the men and women detained at ever-greater rates, they face long waits under stressful conditions for a judge to review ICE’s custody decisions, away from their families and jobs.
Despite the growing number of low risk individuals detained by ICE, including parents and children, immigration judges are not granting bonds at greater rates. Nor are they setting lower bonds on average. For some, detention becomes too much to withstand and they agree to a deportation order simply to get out of jail. Others are stuck with a bond too high to pay, or none at all despite being eligible for one. This means that taxpayers are also on the hook for millions of dollars more to detain people who should not be there. ICE’s own budget request shows as much, with its petition for additional funds to support alternatives to detention.
Because the RCA has a profound impact on who is held in immigration jails, we are building on research conducted by Robert Koulish and Mark Noferi (available here and here). Through FOIA litigation, we have received the RCA scoring methodology, its dramatic changes over the years, and national data for over 1 million people arrested by ICE during the risk tools’ tenure under the Obama administration. We are looking at how the latest change under President Trump continues a trend already underway of manipulating risk to conform civil detention to enforcement policy rather than risk profile. While our analysis is still underway, what’s clear is that detention without reason is on the rise and with it, new reports of physical and sexual abuse, high rates of solitary confinement, inadequate medical conditions, and punitive conditions that DHS appears unable and unwilling to control. In other words, we have a detention system characterized by the same problems the RCA was supposed to guard against.
Whether civil immigration detention is ever necessary is questionable, with over 90% of those enrolled in alternatives to detention appearing at their hearings. Short of abolishing detention altogether, policymakers could put an end to the unconstitutional use of civil detention to hold low risk individuals and demand immediate changes to the unconstitutional conditions that plague detention centers. They should investigate prolonged and indiscriminate detention of asylum seekers and their children, and demand an explanation from ICE about its current use of the ICE calculator. The risk calculator incorporates vast amounts of sensitive personal data, including health conditions and history of persecution. Without a legitimate purpose, using the calculator to collect such data puts already vulnerable people at even greater risk. In the wrong hands, this data could be life threatening.
Above all, if the risk calculator is not being used to make detention, release, or related decisions, for what purpose is it being used? Absent efforts by Congress to hold DHS accountable, the Trump administration will face legal challenges to its detention policies at every turn, as well it should.
Kate Evans is an associate professor at University of Idaho College of Law where she teaches immigration law and policy and directs the Immigration Clinic.
Robert Koulish is Joel Fellow Research Professor at University of Maryland, Director of MLAW Programs undergraduate legal programming at UMD, and lecturer of law at University of Maryland Carey School of Law.