A Humane Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekers

Mark Noferi, Esq.


July 22, 2015

For decades, the U.S. refugee protection system has been a symbol of the nation’s generosity and openness to the world’s persecuted. Yet since Congress’ enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), asylum seekers arriving at the United States-Mexico border have been subject to mandatory detention and summary deportation processes, resulting in the deportation of countless persons in need of protection.Empirical research has found, however, that asylum seekers fleeing persecution arrive predisposed to comply with legal processes and trust the system to provide them a fair hearing, even if they might lose. If the U.S. government treats asylum seekers fairly and humanely—i.e., releases them following their apprehension and provides legal assistance before their hearing—evidence suggests that they will be likely to appear for proceedings. Put simply, a humane approach can work.

This report reviews emerging research on the release of asylum seekers from detention, including the impact of various forms of alternatives to detention (ATD), summarizes the primary harms caused by immigration detention, and argues that releasing asylum seekers (on alternatives as needed) and affording legal assistance can protect the rights of asylum seekers and facilitate compliance with proceedings and legitimate removals, at far less human and financial cost than detention.

Evidence Indicates That Asylum Seekers Provided Alternatives to Detention and Legal Assistance Will Comply with Proceedings

For years, quantitative studies have showed that asylum seekers comply with proceedings (i.e., appear for interviews and court hearings) at high rates. But increasingly, qualitative researchers, primarily outside the United States, have begun examining the reasons for compliance and identified best practices for use in the field. This qualitative research builds upon psychological research showing that when someone in a legal proceeding feels he or she is treated fairly, that person is more likely to view the proceeding as legitimate, and in turn be more likely to appear for hearings and comply with the results of the proceeding.  

Studies of Alternatives to Detention Show High Rates of Compliance with Proceedings

Studies since 1996 have showed very high rates of compliance with proceedings by asylum seekers who were placed into alternatives to detention (a.k.a. “ATD” or supervised release). A 2000 study, commissioned by the U.S. government and conducted by the Vera Institute of Justice, reported an 83 percent rate of compliance with court proceedings among asylum seekers who were found to have a credible fear in the expedited removal process. The study also showed a compliance rate of 84 percent among asylum seekers who were under minimal supervision, and 78 percent among those simply released without supervision. The Vera Institute concluded that “[a]sylum seekers do not need to be detained to appear…. They also do not seem to need intensive supervision.” Likewise, Canada’s Toronto Bail Program, which uses more restrictive supervision, reported a “lost client” ratio among refugee claimants of 8.42 percent from 2002 to 2003.

Alternatives to detention programs not exclusively involving asylum seekers also have shown extremely high rates of compliance. With respect to the U.S. Immigration and Customs Enforcement (ICE) Intensive Supervision Appearance Program (ISAP), from fiscal years 2011 to 2013, 95 percent of participants in the “full-service” program appeared at their scheduled removal hearings, far exceeding ICE’s FY 2010 target for appearance rates by 37 percent. Various Australian alternatives to detention program pilots have achieved 94 percent compliance across programs.  

Asylum Seekers Are Especially Predisposed to Comply with Removal Proceedings

Qualitative research has provided an explanation for these high success rates by demonstrating that asylum seekers are especially predisposed to comply with proceedings. According to a UNHCR-sponsored 2013 study of asylum seekers in Toronto and Geneva, asylum seekers possess a “cooperative predisposition” which derives from four factors. 

First, the “refugee predicament” and fear of persecution “looms largest” in providing a “strong inducement to comply.” Most interviewees felt they had no choice but to comply with legal processes in order to protect themselves from further persecution. Asylum seekers spoke of their “lack of a Plan B” or the “impossibility of returning home.” 

Second, asylum seekers have a natural “inclination towards law-abidingness.” Many expressed that “making the refugee claim was a manifestation of faith in legal process.” Indeed, asylum seekers “strongly value the rule of law,” since many “fled nations with substantial rule of law deficiencies.” 

Third, asylum seekers are inclined to trust the process of determining their claim, and perceive it as fair. Significant numbers of Toronto and Geneva asylum seekers expressed that they expected to enter a “safe haven… where human rights were protected.” Asylum seekers also understood that their claim might not succeed. But they “expected not automatic protection, but a fair hearing.”

Fourth, asylum seekers have a strong desire to “avoid irregular residence,” and most prominently detention, with its attendant hardships. (The Vera Institute also found that for U.S. asylum seekers released on supervision, avoiding detention was a primary motivator for them to comply with supervision terms. )

Legal Assistance, Without Detention, Fosters Compliance with Removal Proceedings

Research on asylum seekers has found that access to early, reliable legal advice is the single most important factor in fostering trust in the legal system and, as a result, ensuring compliance with the adjudicatory process. For example, as one asylum seeker in Toronto said after receiving legal advice, “It is crazy but yeah, I do have trust in the system because I understand it.” Although asylum seekers arrive predisposed to comply with legal processes, compliance is a combination of “knowing the right thing to do and wanting to do it.” And knowing the “right thing to do” requires sound legal advice, especially for asylum seekers who are often confused by the removal process. Legal assistance can make an asylum-seeker aware that he or she may be eligible for relief, and thus make it more likely that he or she will appear at proceedings. 

A lawyer or case worker can most effectively foster trust by identifying and discussing all possibilities with a client early on, even if relief initially appears unattainable, in order to help a client understand the system and feel heard. The Vera Institute reported that many asylum seekers attended their hearings because they “felt they had someone on their side during the court process.”

Although data is not yet available for adults, historical U.S. data on children in immigration proceedings suggests that legal assistance can help to ensure compliance. Over a period of more than nine years, 92.5 percent of those children represented by lawyers appeared for their removal hearings, versus 27.5 percent of children not represented by lawyers.

Holistic Government Assistance, Without Detention, Also Fosters Compliance with Removal Proceedings and Potentially Removal Orders

Government support to asylum seekers—particularly legal assistance, but also social services and housing assistance—also may foster a sense of “belonging” that encourages them to appear for proceedings. For example, Toronto asylum seekers who were placed in residences rather than detention, with access to legal assistance and caseworkers, displayed a “remarkable degree of affection towards Canada” and felt “part of Canadian society.” The researchers found this to be a “strong factor supporting cooperation” with the authorities.

The Vera Institute also found that its U.S. caseworker assistance—which included information on court processes and supervision conditions, referrals to low-cost legal representation, and health, educational, and social services —gave participants a “sense of belonging to life in the United States,” and made them more “willing to buy into cooperation and compliance.” Participants in the Vera program particularly emphasized the program staff’s “kindness and decent treatment” to them, which included “a willingness to take the time to listen and offer constructive guidance.” Vera found that responding to needs as basic as “somewhere to go or someone to call for assistance” contributed the most to a sense of belonging. Subsequently, many Vera program participants expressed that they appeared at their proceedings out of a sense of obligation and gratitude to their caseworkers.  

Asylum seekers’ compliance also may be independent of any community ties in the United States, a factor ICE uses to evaluate flight risk. An asylum seeker’s fear of being returned to persecution, and sense of belonging if provided assistance, may incentivize him or her to comply with proceedings even if the individual knows no one in the United States. Therefore, ICE’s current detention risk evaluation, which considers the lack of family or a potential address in the United States to be factors supporting detention, may overestimate the flight risk posed by asylum seekers in immigration proceedings.

Lastly, providing assistance to asylum seekers may further their compliance with removal orders, although further research is necessary on this point. UNHCR researchers found that “early access to trusted advice and support… may help maintain the rejected asylum-seeker's cooperation with the authorities, even if the claim is rejected.” The Vera Institute also found that asylum seekers,  albeit for a small sample size, “comply at very high rates” with removal orders. Vera theorized that assistance may facilitate compliance with a removal order; Vera program participants made points like, “Although I thought the case was not in my favor, I made an obligation to [my caseworkers] and I did not want to let them down.” Vera also found that those who complied with removal orders expressed a desire to one day return legally to the United States if possible.

Detention Has Serious Adverse Consequences for Asylum Seekers

Conversely, the adverse impacts of detention upon the vulnerable population of asylum seekers are widely recognized and documented, and include psychological harm, interference with access to legal assistance, and even abandonment of legitimate asylum claims. Given these deleterious effects in a context where a wrong decision can return a person to serious harm or death, it is imperative that ICE explore alternatives, including release on recognizance or on bond, parole, or enrollment in a supervised release program.

Detention Causes Psychological Harm

Detention facilities for asylum seekers in the United States have been roundly criticized as unnecessarily punitive and abusive. Border Patrol short-term facilities often are overcrowded. In addition, detainees regularly endure verbal and physical abuse, lack of adequate food and water, unhygienic conditions, and temperatures so low as to pose a health risk. For longer-term detention, ICE uses secure facilities (including criminal jails), unlike “open” facilities that allow detainees to leave and return to the facility such as those used by some European countries for asylum seekers.

The detention of asylum seekers in a secure facility for an undefined period causes psychological and physical trauma. Detainees confined under these terms have little information or control over their confinement and often experience circumstances similar to “sensory deprivation.” They develop feelings of “helplessness and hopelessness that lead to debilitating depressive symptoms, chronic anxiety, despair, dread,” and “PTSD [Post-Traumatic Stress Disorder] and suicidal ideation.” 

A 2003 comprehensive study of 70 asylum seekers in U.S. detention facilities by Physicians for Human Rights (PHR) and Bellevue Hospital found that 86 percent experienced symptoms of depression, 77 percent anxiety, and 50 percent PTSD. Moreover, Physicians for Human Rights has found that asylum seekers are particularly vulnerable to trauma, because detention exacerbates past traumas that many have experienced. International studies reinforce and complement those findings. For example, immigration detainees in secure Swedish facilities reported that “detention is worse than prison because in prison at least the outcome and the time period are known.” A Canadian study also found increased rates of post-traumatic stress and depression among detained versus non-detained asylum seekers. And although U.S. studies on recent Central American asylum seekers have not yet been conducted, several women have attempted suicide, and many have launched hunger strikes and protests.   

Notably, Physicians for Human Rights also reported that the traumas from undefined detention “appear to beindependent of the conditions of detention.” For example, even though Swedish secure facilities are operated by staff without uniforms and offer recreational, educational and other activities, researchers still found that indefinite detention posed a “huge threat” to detainees’ “health and wellbeing.” Recently, non-governmental organizations (NGOs) filed a civil rights complaint asking the U.S. Department of Homeland Security (DHS) to investigate several cases of psychological trauma within family detention. In short, the evidence suggests that while conditions of detention must be improved, improving detention conditions alone is not enough to prevent harm to asylum seekers.

Detention Impedes Access to Legal Assistance

The U.S. government does not provide a lawyer to those seeking asylum. Moreover, detention makes it unlikely that asylum seekers can afford or otherwise secure a lawyer. Many detention centers are located in remote locations, far from pro bono immigration lawyers. Some have restrictive access policies that inhibit effective pro bono representation. Detention also makes it difficult to collect evidence, especially without a lawyer.  

Yet, representation is crucial: studies show that a lawyer makes a real difference in whether a person will succeed in his or her asylum case. In a 2007 national study, 45.6 percent of represented asylum seekers in formal removal proceedings were successful, compared to 16.3 percent of unrepresented asylum seekers. Similarly, in New York, 84 percent of represented individuals who brought persecution-based claims in immigration court were successful, compared to 21 percent of unrepresented individuals who brought persecution-based claims.

Such results are not surprising. A lawyer can play a key role in helping the asylum seeker navigate legal and procedural complexities, collecting evidence, and advocating for him or her to decision makers. Many asylum seekers are afraid to talk to U.S. government officials, which inhibits their already-limited ability to advocate for themselves. If the asylum officer determines that an asylum seeker fears return, he or she must still negotiate trial-like removal proceedings against a government lawyer. Often the asylum seeker has little education or ability to speak or understand English and is without friends or family to help prepare her claims. Judges review asylum seekers’ statements for exacting consistency and may deny relief based on an inconsistency.  

Detention Causes Abandonment of Asylum Claims

Detention without legal assistance also leads some to abandon their asylum applications despite having a credible fear of persecution or torture. In a major study of asylum seekers in expedited removal, the U.S. Commission on International Religious Freedom (USCIRF) interviewed 45 asylum seekers who abandoned their asylum claims while in detention and found that a “substantial number reported that the conditions of their detention influenced their decision to withdraw their application for admission.” The same study found that over a five-year period, detained credible fear claimants withdrew their asylum claims in immigration court at more than double the rate of non-detained or released claimants (13 percent versus five percent).

Additionally, in FY 2014, USCIS “closed” a much higher number of applications due to withdrawal or abandonment in reinstatement of removal proceedings (46 percent) than in expedited removal proceedings (10 percent). Although USCIS did not report its reasons for closing, applicants in reinstatement of removal proceedings have been detained much longer on average pending USCIS’ decision. 

The Government Should Take Steps to Reduce the Detention of Asylum Seekers and Increase Access to Counsel

Taken together, the available research suggests that if the U.S. government treats asylum seekers fairly and humanely, they will likely appear for proceedings. Particularly given the serious adverse effects of detention on asylum seekers, immediate steps should be taken to reduce detention and ensure access to legal assistance. The Center for Migration Studies and U.S. Conference of Catholic Bishops have provided detailed recommendations to implement these goals, with a particular focus on asylum seekers. The immigration reform bill that passed the Senate in 2013 also contained several positive steps towards these goals.

NGOs have uniformly recommended that the practice of detaining families be ended. Recently, DHS Secretary Jeh Johnson announced the agency’s intention to shorten detention for initial processing for families, and ICE subsequently released some mothers and children who had been determined to have a credible fear of returning to their countries. Both are positive first steps.

Generally, release should be the norm, not detention. ICE can and should expand its use of release on recognizance, bond, and parole, with alternatives to detention only provided to those needing it to appear for proceedings. Notably, ICE’s use of alternatives to detention—generally, supervision, tracking, and case management—has been limited compared to ICE’s use of detention. ICE’s Intensive Supervision Appearance Program (ISAP), which is managed by a for-profit contractor, supervised 40,864 noncitizens in FY 2013, compared to 440,557 noncitizens that ICE detained. ICE sometimes uses ISAP for asylum seekers initially placed in expedited removal who have been screened and found to have a credible fear. Specific statistics on asylum seekers enrolled in ISAP are unavailable, however.

The level of restriction placed on a person in ISAP varies. In FY 2013, ISAP placed GPS (i.e., electronic tracking bracelets or “ankle bracelets”) on 48 percent of the noncitizens in its “full-service” program, while it subjected the remaining 52 percent only to telephonic check-ins. Recent reports, however, indicate that ICE is increasingly using ankle bracelets on asylum seekers. Yet ankle bracelets are intrusive, stigmatizing, and in some cases cause retraumatization and often are unnecessary. Given that asylum seekers are predisposed to comply with their legal proceedings, this form of intensive supervision is rarely needed. As one mother recently forced to wear an ankle bracelet said, “Where do they think I’m going to flee to? I have nowhere to go.”

ICE also has intermittently engaged NGOs to facilitate community supervision pilot programs—i.e., case management and assistance services provided by an NGO, rather than a for-profit entity such as ICE’s current contractor. In February 2015, ICE announced its intention to fund community-based case management services for families in five major metropolitan areas. This is a positive step, particularly considering the concerns that for-profit detention management has raised.  

Reducing unnecessary detention not only would minimize human costs, but would reduce the financial burden of detention as well. ICE’s ATD programs cost $10.55 per day, as opposed to detention, which costs $158 per day. Yet the Obama administration requested only $122.5 million for ATDs in FY 2016, as part of a total detention budget of $2.4 billion. The $435 million requested for family detention alone dwarfs the requested ATD budget. One study suggested that if the United States used ATDs for all immigrants in proceedings not convicted of serious crimes, the government could save over $1.4 billion per year. Other studies suggest that the provision of counsel would additionally reduce detention costs.

Finally, with respect to legal counsel, the Departments of Justice and Health and Human Services have instituted pilot programs to fund lawyers for unaccompanied children. The Administration also requested $50 million in FY 2016 to fund additional lawyers for unaccompanied children. Extending these pilot programs to adult asylum seekers, and ultimately to all immigrants in proceedings, are important next steps to help ensure both compliance with the legal process and that individuals are afforded a fair opportunity to seek protection in the United States.

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